Subject:  UNITED STATES v. KOKINDA, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


UNITED STATES v. KOKINDA et al.


certiorari to the united states court of appeals for the fourth circuit

No. 88-2031.  Argued February 26, 1990--Decided June 27, 1990

Respondents, members of a political advocacy group, set up a table on a
sidewalk near the entrance to a United States Post Office to solicit
contributions, sell books and subscriptions to the organization's
newspaper, and distribute literature on a variety of political issues.  The
sidewalk is the sole means by which customers may travel from the parking
lot to the post office building and lies entirely on Postal Service
property.  When respondents refused to leave the premises, they were
arrested and subsequently convicted by a Federal Magistrate of violating,
inter alia, 39 CFR MDRV 232.1(h)(1), which prohibits solicitation on postal
premises.  The District Court affirmed the convictions.  It rejected
respondents' argument that MDRV 232.1(h)(1) violated the First Amendment,
holding that the postal sidewalk was not a public forum and that the ban on
solicitation is reasonable.  The Court of Appeals reversed.  Finding that
the sidewalk is a public forum and analyzing the regulation as a time,
place, and manner restriction, it determined that the Government has no
significant interest in banning solicitation and that the regulation is not
narrowly tailored to accomplish the asserted governmental interest.

Held: The judgment is reversed.

866 F. 2d 699, reversed.

    Justice O'Connor, joined by The Chief Justice, Justice White, and
Justice Scalia, concluded that the regulation, as applied, does not violate
the First Amendment.  Pp. 3-15.

    (a) Although solicitation is a recognized form of speech protected by
the First Amendment, the Government may regulate such activity on its
property to an extent determined by the nature of the relevant forum.
Speech activity on governmental property that has been traditionally open
to the public for expressive activity or has been expressly dedicated by
the Government to speech activity is subject to strict scrutiny.  Perry
Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45.
However, where the property is not a traditional public forum and the
Government has not dedicated its property to First Amendment activity, such
regulation is examined only for reasonableness.  Id., at 46.  Pp. 3-5.

    (b) Section 232.1(h)(1) must be analyzed under the standards applicable
to nonpublic fora: it must be reasonable and "not an effort to suppress
expression merely because public officials oppose the speaker's view."
Ibid.  The postal sidewalk is not a traditional public forum.  The fact
that the sidewalk resembles the municipal sidewalk across the parking lot
from the post office is irrelevant to forum analysis.  See Greer v. Spock,
424 U. S. 828.  The sidewalk was constructed solely to provide for the
passage of individuals engaged in postal business, not as a public
passageway.  Nor has the Postal Service expressly dedicated its sidewalk to
any expressive activity.  Postal property has only been dedicated to the
posting of public notices on designated bulletin boards.  A practice of
allowing individuals and groups to leaflet, speak, and picket on postal
premises and a regulation prohibiting disruptive conduct do not add up to
such dedication.  Even conceding that the forum has been dedicated to some
First Amendment uses, and thus is not a purely nonpublic forum, regulation
of the reserved nonpublic uses would still require application of the
reasonableness test.  Pp. 5-9.

    (c) It is reasonable for the Postal Service to prohibit solicitation
where it has determined that the intrusion creates significant interference
with Congress' mandate to ensure the most effective and efficient
distribution of the mails.  The categorical ban is based on the Service's
long, real- world experience with solicitation, which has shown that,
because of continual demands from a wide variety of groups, administering a
program of permits and approvals had distracted postal facility managers
from their primary jobs.  Whether or not the Service permits other forms of
speech, it is not unreasonable for it to prohibit solicitation on the
ground that it inherently disrupts business by impeding the normal flow of
traffic.  See Heffron v. ISKCON, 452 U. S. 640, 653.  Confrontation by a
person asking for money disrupts passage and is more intrusive and
intimidating than an encounter with a person giving out information.  Even
if more narrowly tailored regulations could be promulgated, the Service is
only required to promulgate reasonable regulations, not the most reasonable
or the only reasonable regulation possible.  Clearly, the regulation does
not discriminate on the basis of content or viewpoint.  The Service's
concern about losing customers because of the potentially unpleasant
situation created by solicitation per se does not reveal an effort to
discourage one viewpoint and advance another.  Pp. 9-15.

    Justice Kennedy, agreeing that the regulation does not violate the
First Amendment, concluded that it is unnecessary to determine whether the
sidewalk is a nonpublic forum, since the regulation meets the traditional
standards applied to time, place, and manner restrictions of protected
expression.  See Clark v. Community for Creative Non- Violence, 468 U. S.
288, 293.  The regulation expressly permits respondents and all others to
engage in political speech on topics of their choice and to distribute
literature soliciting support, including money contributions, provided
there is no in-person solicitation for immediate payments on the premises.
The Government has a significant interest in protecting the integrity of
the purposes to which it has dedicated its property, that is, facilitating
its customers' postal transactions.  Given the Postal Service's past
experience with expressive activity on its property, its judgment that
in-person solicitation should be treated differently from alternative forms
of solicitation and expression should not be rejected.  Pp. 2-3.

O'Connor, J., announced the judgment of the Court and delivered an opinion,
in which Rehnquist, C. J., and White and Scalia, JJ., joined.  Kennedy, J.,
filed an opinion concurring in the judgment.  Brennan, J., filed a
dissenting opinion, in which Marshall and Stevens, JJ., joined, and in
which Blackmun, J., joined as to Part I.

------------------------------------------------------------------------------



Subject: 88-2031--OPINION, UNITED STATES v. KOKINDA

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 88-2031



UNITED STATES, PETITIONER v.
MARSHA B. KOKINDA et al.


on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 27, 1990]



    Justice O'Connor announced the judgment of the Court and delivered an
opinion in which The Chief Justice, Justice White, and Justice Scalia
join.
    We are called upon in this case to determine whether a United States
Postal Service regulation that prohibits "[s]oliciting alms and
contributions" on postal premises violates the First Amendment.  We hold
the regulation valid as applied.

I
    The respondents in this case, Marsha B. Kokinda and Kevin E. Pearl,
were volunteers for the National Democratic Policy Committee, who set up a
table on the sidewalk near the entrance of the Bowie, Maryland, post office
to solicit contributions, sell books and subscriptions to the
organization's newspaper, and distribute literature addressing a variety of
political issues.  The postal sidewalk provides the sole means by which
customers of the post office may travel from the parking lot to the post
office building and lies entirely on Postal Service property.  The District
Court for the District of Maryland described the layout of the post office
as follows:

"[T]he Bowie post office is a freestanding building, with its own sidewalk
and parking lot.  It is located on a major highway, Route 197.  A sidewalk
runs along the edge of the highway, separating the post office property
from the street.  To enter the post office, cars enter a driveway that
traverses the public sidewalk and enter a parking lot that surrounds the
post office building.  Another sidewalk runs adjacent to the building
itself, separating the parking lot from the building.  Postal patrons must
use the sidewalk to enter the post office.  The sidewalk belongs to the
post office and is used for no other purpose."  App. to Pet. for Cert.
24a.


    During the several hours that respondents were at the post office,
postal employees received between 40 and 50 complaints regarding their
presence.  The record does not in dicate the substance of the complaints
with one exception.  One individual complained "because she knew the Girl
Scouts were not allowed to sell cookies on federal property."  866 F. 2d
699, 705 (CA4 1989).  The Bowie postmaster asked respondents to leave,
which they refused to do.  Postal inspectors arrested respondents, seizing
their table as well as their literature and other belongings.
    Respondents were tried before a United States Magistrate in the
District of Maryland and convicted of violating 39 CFR MDRV 232.1(h)(1)
(1989), which provides in relevant part:

"Soliciting alms and contributions, campaigning for election to any public
office, collecting private debts, commercial soliciting and vending, and
displaying or dis tributing commercial advertising on postal premises are
prohibited."


Respondent Kokinda was fined $50 and sentenced to 10 days' imprisonment;
respondent Pearl was fined $100 and received a 30-day suspended sentence
under that provision.
    Respondents appealed their convictions to the District Court, asserting
that application of MDRV 232.1(h)(1) violated the First Amendment.  The
District Court affirmed their convictions, holding that the postal sidewalk
was not a public forum and that the Postal Service's ban on solicitation is
reasonable.
    A divided panel of the United States Court of Appeals for the Fourth
Circuit reversed.  866 F. 2d 699 (1989).  The Court of Appeals held that
the postal sidewalk is a traditional public forum and analyzed the
regulation as a time, place, and manner regulation.  The Court determined
that the Government has no significant interest in banning solicitation and
that the regulation is not narrowly tailored to accomplish the asserted
governmental interest.
    Respondents' petition for rehearing and a suggestion for rehearing en
banc were denied.  Because the decision below conflicts with other
decisions by the Courts of Appeals, see United States v. Belsky, 799 F. 2d
1485 (CA11 1986); United States v. Bjerke, 796 F. 2d 643 (CA3 1986), we
granted certiorari.  493 U. S. ---- (1989).

II
    Solicitation is a recognized form of speech protected by the First
Amendment.  See Schaumburg v. Citizens for a Better Environment, 444 U. S.
620, 629 (1980); Riley v. National Federation of Blind of N. C., Inc., 487
U. S. 781, 788- 789, (1988).  Under our First Amendment jurisprudence, we
must determine the level of scrutiny that applies to the regulation of
protected speech at issue.
    The Government's ownership of property does not automatically open that
property to the public.  United States Postal Service v. Council of
Greenburgh Civic Assns., 453 U. S. 114, 129 (1981).  It is a long-settled
principle that governmental actions are subject to a lower level of First
Amendment scrutiny when "the governmental function operating . . . [is] not
the power to regulate or license, as lawmaker, . . . but, rather, as
proprietor, to manage [its] internal operation[s] . . . ."  Cafeteria &
Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961).  That distinction
was reflected in the plurality opinion in Lehman v. City of Shaker Heights,
418 U. S. 298 (1974), which upheld a ban on political advertisements in
city transit vehicles:

    "Here, we have no open spaces, no meeting hall, park, street corner, or
other public thoroughfare.  Instead, the city is engaged in commerce. . . .
The car card space, although incidental to the provision of public
transportation, is a part of the commercial venture.  In much the same way
that a newspaper or periodical, or even a radio or television station, need
not accept every proffer of advertising from the general public, a city
transit system has discretion to develop and make reasonable choices
concerning the type of advertising that may be displayed in its vehicles."
Id., at 303.


    The Government, even when acting in its proprietary capacity, does not
enjoy absolute freedom from First Amendment constraints, as does a private
business, but its action is valid in these circumstances unless it is
unreasonable, or, as was said in Lehman, "arbitrary, capricious, or
invidious."  Ibid.  In Lehman, the plurality concluded that the ban on
political advertisements (combined with the allowance of other
advertisements) was permissible under this standard:

"Users [of the transit system] would be subjected to the blare of political
propaganda.  There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
politicians.  In these circumstances, the managerial decision to limit car
card space to innocuous and less con troversial commercial and service
oriented advertising does not rise to the dignity of a First Amendment
violation.  Were we to hold to the contrary, display cases in public
hospitals, libraries, office buildings, military compounds, and other
public facilities immediately would become Hyde Parks open to every
would-be pamphleteer and politician.  This the Constitution does not
require."  Id., at 304.


    Since Lehman, "the Court has adopted a forum analysis as a means of
determining when the Government's interest in limiting the use of its
property to its intended purpose outweighs the interest of those wishing to
use the property for other purposes.  Accordingly, the extent to which the
Government can control access depends on the nature of the relevant forum."
Cornelius v. NAACP Legal Defense and Educational Fund, 473 U. S. 788, 800
(1985).  In Perry Education Assn. v. Perry Local Educators' Assn., 460 U.
S. 37 (1983), the Court announced a tripartite framework for determining
how First Amendment interests are to be analyzed with respect to Government
property.  Regulation of speech activity on governmental property that has
been traditionally open to the public for expressive activity, such as
public streets and parks, is examined under strict scrutiny.  Id., at 45.
Regulation of speech on property that the Government has expressly
dedicated to speech activity is also examined under strict scrutiny.  Ibid.
But regulation of speech activity where the Government has not dedicated
its property to First Amendment activity is examined only for
reasonableness.  Id., at 46.
    Respondents contend that although the sidewalk is on postal service
property, because it is not distinguishable from the municipal sidewalk
across the parking lot from the post office's entrance, it must be a
traditional public forum and therefore subject to strict scrutiny.  This
argument is unpersuasive.  The mere physical characteristics of the
property cannot dictate forum analysis.  If they did, then Greer v. Spock,
424 U. S. 828 (1976), would have been decided differ ently.  In that case,
we held that even though a military base permitted free civilian access to
certain unrestricted areas, the base was a nonpublic forum.  The presence
of sidewalks and streets within the base did not require a finding that it
was a public forum.  Id., at 835-837.
    The postal sidewalk at issue does not have the characteristics of
public sidewalks traditionally open to expressive activity.  The municipal
sidewalk that runs parallel to the road in this case is a public
passageway.  The Postal Service's sidewalk is not such a thoroughfare.
Rather, it leads only from the parking area to the front door of the post
office.  Unlike the public street described in Heffron v. Int'l Soc. for
Krishna Consciousness, Inc., 452 U. S. 640 (1981), which was "continually
open, often uncongested, and constitute[d] not only a necessary conduit in
the daily affairs of a locality's citizens, but also a place where people
[could] enjoy the open air or the company of friends and neighbors in a
relaxed environment," id., at 651, the postal sidewalk was constructed
solely to provide for the passage of individuals engaged in postal
business.  The sidewalk leading to the entry of the post office is not the
traditional public forum sidewalk referred to in Perry.
    Nor is the right of access under consideration in this case the
quintessential public sidewalk which we addressed in Frisby v. Schultz, 487
U. S. 474 (1988) (residential sidewalk).  The postal sidewalk was
constructed solely to assist postal patrons to negotiate the space between
the parking lot and the front door of the post office, not to facilitate
the daily commerce and life of the neighborhood or city.  The dissent would
designate all sidewalks open to the public as public fora.  See post, at 6
("[T]hat the walkway at issue is a public sidewalk is alone sufficient to
identify it as a public forum").  That, however, is not our settled
doctrine.  In United States v. Grace, 461 U. S. 171 (1983), we did not
merely identify the area of land covered by the regulation as a sidewalk
open to the public and therefore conclude that it was a public forum:

"The sidewalks comprising the outer boundaries of the Court grounds are
indistinguishable from any other sidewalks in Washington, D. C., and we can
discern no reason why they should be treated any differently.  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.  In this respect, the
present case differs from Greer v. Spock . . . .  In Greer, the streets and
sidewalks at issue were located within an enclosed military reservation,
Fort Dix, N. J., and were thus separated from the streets and sidewalks of
any municipality.  That is not true of the sidewalks surrounding the Court.
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."  Id., at 179-180 (footnote omitted).


    Grace instructs that the dissent is simply incorrect in asserting that
every "public sidewalk" is a public forum.  Post, at 6-7.  As we recognized
in Grace, the location and purpose of a publicly-owned sidewalk is critical
to determining whether such a sidewalk constitutes a public forum.
    The dissent's attempt to distinguish Greer is also unpersuasive.  The
dissent finds Greer "readily distinguishable, because the sidewalk in that
case was not truly `open' to the public."  Post, at 9, n. 5.  This
assertion is surprising in light of Justice Brennan's description of the
public access permitted in Greer:
"No entrance to the Fort is manned by a sentry or blocked by any barrier.
The reservation is crossed by 10 paved roads, including a major state
highway.  Civilians without any prior authorization are regular visitors to
unrestricted areas of the Fort or regular pass through it, either by foot
or by auto, at all times of the day and night.  Civilians are welcome to
visit soldiers and are welcome to visit the Fort as tourists.  They eat at
the base and freely talk with recruits in unrestricted areas.  Public
service buses, carrying both civilian and military passengers, regularly
serve the base.  A 1970 traffic survey indicated that 66,000 civilian and
military vehicles per day entered and exited the Fort.  Indeed, the
reservation is so open as to create a danger of muggings after payday and a
problem with prostitution."  424 U. S., at 851 (dissenting opinion).


    In Greer we held that the power of the Fort's commanding officer
summarily to exclude civilians from the area of his command demonstrated
that "[t]he notion that federal military reservations, like municipal
streets and parks, have traditionally served as a place for free public
assembly and communication of thoughts by private citizens is . . .
historically and constitutionally false."  Id., at 838.  It is the latter
inquiry that has animated our traditional public forum analysis, and that
we apply today.  Postal entryways, like the walkways at issue in Greer, may
be open to the public, but that fact alone does not establish that such
areas must be treated as traditional public fora under the First
Amendment.
    The Postal Service has not expressly dedicated its sidewalks to any
expressive activity.  Indeed, postal property is expressly dedicated to
only one means of communication: the posting of public notices on
designated bulletin boards.  See 39 CFR MDRV 232.1(o) (1989).  No postal
service regulation opens postal sidewalks to any First Amendment activity.
To be sure, individuals or groups have been permitted to leaflet, speak,
and picket on postal premises, see Reply Brief for United States 12; 43
Fed. Reg. 38824 (1978), but a regula- tion prohibiting disruption, 39 CFR
MDRV 232(1)(e) (1989), and a practice of allowing some speech activities on
postal property do not add up to the dedication of postal property to
speech activities.  We have held that "[t]he government does not create a
public forum by . . . permitting limited discourse, but only by
intentionally opening a nontraditional forum for public discourse."
Cornelius, supra, at 802 (emphasis added); see also Perry, supra, at 47
("[S]elective access does not transform government property into a public
forum").  Even conceding that the forum here has been dedicated to some
First Amendment uses, and thus is not a purely nonpublic forum, under
Perry, regulation of the reserved nonpublic uses would still require
application of the reasonableness test.  See Cornelius, supra, at 804-806.
    Thus, the regulation at issue must be analyzed under the standards set
forth for nonpublic fora: it must be reasonable and "not an effort to
suppress expression merely because public officials oppose the speaker's
view."  Perry, supra, at 46.  Indeed, "[c]ontrol over access to a nonpublic
forum can be based on subject matter and speaker identity so long as the
distinctions drawn are reasonable in light of the purpose served by the
forum and are viewpoint neutral."  Cornelius, supra, at 806.  "The
Government's decision to restrict access to a nonpublic forum need only be
reasonable; it need not be the most reasonable or the only reasonable
limitation."  Id., at 808.

III
    The history of regulation of solicitation in post offices demonstrates
the reasonableness of the provision here at issue.  The Postal Service has
been regulating solicitation at least since 1958.  Before enactment of the
1970 Postal Reorga nization Act, Pub. L. 91-375, 84 Stat. 720, 39 U. S. C.
MDRV 201 et seq., the Post Office Department's internal guidelines
"strictly prohibited" the "[s]oliciting [of] subscriptions, canvassing for
the sale of any article, or making collections . . . in buildings operated
by the Post Office Department, or on the grounds or sidewalks within the
lot lines" of postal prem ises.  Postal Service Manual, Facilities
Transmittal Letter 8, Buildings Operation: Buildings Operated by the Post
Office Department MDRV 622.8 (July 1958).  The Service prohibited all forms
of solicitation until 1963, at which time it created an exception to its
categorical ban on solicitation to enable certain "established national
health, welfare, and veterans' organizations" to conduct fund drives "at or
within" postal premises with the local postmaster's permission, and at his
discretion.  See Facilities Transmittal letter 53, Buildings Operation:
Buildings Operated by the Post Office Department MDRV 622.8 (July 1963).
The general prohibition on solici tation was enlarged in 1972 to include
"[s]oliciting alms and contributions or collecting private debts on postal
premises."  37 Fed. Reg. 24347 (1972), codified at 39 CFR 232.6(h)(1)
(1973).
    Soon after the 1972 amendment to the regulation, the Service expanded
the exemption to encompass "[n]ational organizations which are wholly
nonprofit in nature and which are devoted to charitable or philanthropic
purposes" and "[l]ocal charitable and other nonprofit organizations," 39
CFR MDRV 232.6(h)(2), (3) (1974), and to permit these organizations to
"request use of lobby space for annual or special fund raising campaigns,
providing they do not interfere with the transaction of postal business or
require expenditures by the Postal Services or the use of its employees or
equipment."  38 Fed. Reg. 27824-27825 (1973), codified at 39 CFR MDRV
232.16(h)(2) (1974).  Finally, in 1978, the Service promulgated the
regulation at issue here.  After 15 years of pro viding various exceptions
to its rule against solicitation, the Service concluded that a categorical
ban on solicitation was necessary, because the "Postal Service lacks the
resources to enforce such regulation in the tens of thousands of post
offices throughout the nation.  In addition, such regulation would be, of
necessity, so restrictive as to be tantamount to prohibition, and so
complex as to be unadministrable."  43 Fed. Reg. 38824 (1978).
    "[C]onsideration of a forum's special attributes is relevant to the
constitutionality of a regulation since the significance of the
governmental interest must be assessed in light of the characteristic
nature and function of the particular forum involved."  Heffron, supra, at
650-651.  The purpose of the forum in this case is to accomplish the most
efficient and effective postal delivery system.  See 39 U. S. C. MDRV
403(a); MDRV 403(b)(1); H. R. Rep. No. 91-1104, pp. 1, 5, 11-12, 17, 19
(1970).  Congress has made clear that "it wished the Postal Service to be
run more like a business than had its predecessor, the Post Office
Department."  Franchise Tax Board of California v. United States Postal
Service, 467 U. S. 512, 519-520, and n. 13 (1984).  Congress has directed
the Service to become a self-sustaining service industry and to "seek out
the needs and desires of its present and potential cus tomers--the American
public" and to provide services in a manner "responsive" to the "needs of
the American people."  H. R. Rep. No. 91-1104, supra, at 19-20.  The Postal
Service has been entrusted with this mission at a time when the mail
service market is becoming much more competitive.  It is with this mission
in mind that we must examine the regulation at issue.
    The Government asserts that it is reasonable to restrict access of
postal premises to solicitation, because solicitation is inherently
disruptive of the postal service's business.  We agree.  "Since 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.  Reflection usually is not encouraged, and the person
solicited often must make a hasty decision whether to share his resources
with an unfamiliar organization while under the eager gaze of the
solicitor."  43 Fed. Reg. 38824 (1978).
    The dissent avoids determining whether the sidewalk is a public forum
because it believes the regulation, 39 CFR MDRV 232.1(h) (1989), does not
pass muster even under the rea sonableness standard applicable to nonpublic
fora.  In concluding that MDRV 232.1(h) is unreasonable, the dissent relies
heavily on the fact that the Service permits other types of potentially
disruptive speech on a case-by-case basis.  The dissent's criticism in this
regard seems to be that solicitation is not receiving the same treatment by
the Postal Service that other forms of speech receive.  See post, at 21
(criticizing "inconsistent treatment").  That claim, however, is more
properly addressed under the equal protection component of the Fifth
Amendment.  In any event, it is anomalous that the Service's allowance of
some avenues of speech would be relied upon as evidence that it is
impermissibly suppressing other speech.  If anything, the Service's
generous accommodation of some types of speech testifies to its willingness
to provide as broad a forum as possible, consistent with its postal
mission.  The dissent would create, in the name of the First Amendment, a
disincentive for the Government to dedicate its property to any speech
activities at all.  In the end, its approach permits it to sidestep the
single issue before us: Is the Government's prohibition of solicitation on
postal sidewalks unreasonable?
    Whether or not the Service permits other forms of speech, which may or
may not be disruptive, it is not unreasonable to prohibit solicitation on
the ground that it is unquestionably a particular form of speech that is
disruptive of business.  Solicitation impedes the normal flow of traffic.
See Heffron, 452 U. S., at 653.  Solicitation requires action by those who
would respond: the individual solicited must decide whether or not to
contribute (which itself might involve reading the solicitor's literature
or hearing his pitch), and then, having decided to do so, reach for a
wallet, search it for money, write a check, or produce a credit card.  See
Record, Exh. 5 (credit card receipt); see also United States v. Belsky, 799
F. 2d 1485 (CA11 1986) ("Soliciting funds is an inherently more intrusive
and complicated activity than is distribut- ing literature").  As residents
of metropolitan areas know from daily experience, confrontation by a person
asking for money disrupts passage and is more intrusive and intimidating
than an encounter with a person giving out information.  One need not
ponder the contents of a leaflet or pamphlet in order mechanically to take
it out of someone's hand, but one must listen, comprehend, decide and act
in order to respond to a solicitation.  Solicitors can achieve their goal
only by "stopping [passersby] momentarily or for longer periods as money is
given or exchanged for literature" or other items.  Heffron, supra, at 653
(upholding stringent restrictions on the location of sales and solicitation
activity).  Justice Blackmun noted this distinction in his opinion
concurring in part and dissenting in part to Heffron:

"The distribution of literature does not require that the recipient stop in
order to receive the message the speaker wishes to convey; instead, the
recipient is free to read the message at a later time. . . .  [S]ales and
the the collection of solicited funds not only require the fairgoer to
stop, but also `engender additional confusion . . . because they involve
acts of exchanging articles for money, fumbling for and dropping money,
making change, etc."  452 U. S., at 665 (citation omitted).


This description of the disruption and delay caused by solicitation rings
of "common-sense," ibid., which is sufficient in this Court to uphold a
regulation under reasonableness review.
    The Postal Service's judgment is based on its long experience with
solicitation.  It has learned from this experience that because of a
continual demand from a wide range of groups for permission to conduct
fundraising or vending on postal premises, postal facility managers were
distracted from their primary jobs by the need to expend considerable time
and energy fielding competing demands for space and administering a program
of permits and approvals.  See Tr. of Oral Arg. 9 ("The Postal Service
concluded after an experience with limited solicitation that there wasn't
enough room for everybody who wanted to solicit on postal property and
further concluded that allowing limited solicitation carried with it more
problems than it was worth").  Thus, the Service found that "even the
limited activities permitted by [its] program . . . produced highly
unsatisfactory results."  42 Fed. Reg. 63911 (1977).  It is on the basis of
this real-world experience that the Postal Service enacted the regulation
at issue in this case.  The Service also enacted regulations barring
deposit or display of written materials except on authorized bulletin
boards "to regain space for the effec- tive display of postal materials and
the efficient transaction of postal business, eliminate safety hazards,
reduce main tenance costs, and improve the appearance of exterior and
public-use areas on postal premises."  43 Fed. Reg. 38824 (1978); see 39
CFR MDRV 232.1(o) (1989).  In short, the Postal Service has prohibited the
use of its property and resources where the intrusion creates significant
interference with Congress' mandate to ensure the most effective and
efficient distribution of the mails.  This is hardly unreasonable.
    The dissent concludes that the Service's administrative concerns are
unreasonable, largely because of the existence of less restrictive
alternatives to the regulations at issue.  See post, at 22-23.  Even if
more narrowly tailored regulations could be promulgated, however, the
Postal Service is only required to adopt reasonable regulations, not "the
most reasonable or the only reasonable" regulation possible.  Cornelius,
473 U. S., at 808.
    The dissent also would strike the regulation on the ground that the
Postal Service enacted it because solicitation "would be likely to produce
hostile reactions and to cause people to avoid post offices."  43 Fed. Reg.
38824 (1978).  The dissent reads into the Postal Service's realistic
concern with losing postal business because of the uncomfortable atmosphere
created by aggressive solicitation an intent to suppress certain views.
See post, at 15.  But the Postal Service has never intimated that it
intends to suppress the views of any "disfavored or unpopular political
advocacy group."  Ibid.  It is the inherent nature of solicitation itself,
a content-neutral ground, that the Service justifiably relies upon when it
concludes that solicitation is disruptive of its business.  The regulation
is premised on the Service's long experience, on the fact that solicitation
is inherently more disruptive than the other speech activities it permits,
and on the Service's empirically based conclusion that a case-by-case
approach to regulation of solicitation is unworkable.
    Clearly, the regulation does not discriminate on the basis of content
or viewpoint.  Indeed, "[n]othing suggests the Postal Service intended to
discourage one viewpoint and advance another. . . .  By excluding all . . .
groups from engaging in [solicitation] the Postal Service is not granting
to `one side of a debatable public question . . . a monopoly in expressing
its views.' "  Monterey County Democratic Central Committee v. United
States Postal Service, 812 F. 2d 1194, 1198-1199 (CA9 1987) (citation
omitted).  The Service's concern about losing customers because of the
potentially unpleasant situation created by solicitation per se does not
reveal "an effort to suppress expression merely because public officials
oppose the speaker's view."  Perry, 460 U. S., at 45-46.
    It is clear that this regulation passes constitutional muster under the
Court's usual test for reasonableness.  See Lehman, 418 U. S., at 303;
Cornelius, 473 U. S., at 808.  Accordingly, we conclude, as have the Courts
of Appeals for the Third and Eleventh Circuits, that the Postal Service's
regu lation of solicitation is reasonable as applied.  See United States v.
Belsky, 799 F. 2d 1485 (CA11 1986); United States v. Bjerke, 796 F. 2d 643
(CA3 1986).
    The judgment of the court of appeals is
Reversed.


------------------------------------------------------------------------------



Subject: 88-2031-DISSENT, UNITED STATES v. KOKINDA

 


    SUPREME COURT OF THE UNITED STATES


No. 88-2031



UNITED STATES, PETITIONER v.
MARSHA B. KOKINDA et al.


on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 27, 1990]



    Justice Kennedy, concurring in the judgment.
    I agree that the postal regulation reviewed here does not violate the
First Amendment.  Because my analysis differs in essential respects from
that in Justice O'Connor's opinion, a separate statement of my views is
required.
    Many of those who use postal facilities do so from necessity, not
choice.  They must go to a post office to conduct their business and
personal correspondence, carrying cash for stamps or money orders.  While
it is legitimate for the Postal Service to ensure convenient and unimpeded
access for postal patrons, the public's use of postal property for
communicative purposes means that the surrounding walkways may be an
appropriate place for the exercise of vital rights of expression.  As
society becomes more insular in character, it becomes essential to protect
public places where traditional modes of speech and forms of expression can
take place.  It is true that the uses of the adjacent public buildings and
the needs of its patrons are an important part of a balance, but there
remains a powerful argument that, because of the wide range of activities
that the Government permits to take place on this postal sidewalk, it is
more than a nonpublic forum.
    This is so even though the Government may intend to impose some
limitations on the forum's use.  If our public forum jurisprudence is to
retain vitality, we must recognize that certain objective characteristics
of Government property and its customary use by the public may control the
case.  See, e. g., Cornelius v. NAACP Legal Defense and Educational Fund,
Inc., 473 U. S. 788, 819-820 (1985) (Blackmun, J., dissenting).  While it
is proper to weigh the need to maintain the dignity and purpose of a public
build- ing, see United States v. Grace, 461 U. S. 171, 182 (1983), or to
impose special security requirements, see Adderley v. Florida, 385 U. S. 39
(1966), other factors may point to the conclusion that the Government must
permit wider access to the forum than it has otherwise intended.  Viewed in
this light, the demand for recognition of heightened First Amendment
protection has more force here than in those instances where the Government
created a nontraditional forum to accommodate speech for a special purpose,
as was thought true with teachers' mail boxes in Perry Education Assn. v.
Perry Local Educators' Assn., 460 U. S. 37 (1983), or the Combined Federal
Campaign in Cornelius, supra.
    It is not necessary, however, to make a precise determination whether
this sidewalk and others like it are public or nonpublic forums; in my
view, the postal regulation at issue meets the traditional standards we
have applied to time, place, and manner restrictions of protected
expression.  See Clark v. Community for Creative Non-Violence, 468 U. S.
288, 293 (1984).
    "[E]ven in a public forum the government may impose reasonable
restrictions on the time, place, or manner of protected speech, provided
the restrictions `are justified with- out reference to the content of the
regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels
for communication of the information.' "  Ward v. Rock Against Racism, 491
U. S. ----, ---- (1989) (slip op., at 8) (quoting Clark, supra, at 293).
The regulation, in its only part challenged here, goes no further than to
prohibit personal solicitations on postal property for the immediate
payment of money.  The regulation, as the United States concedes, expressly
permits the respondents and all others to engage in political speech on
topics of their choice and to distribute literature soliciting support,
including money contributions, provided there is no in-person solicitation
for payments on the premises.  See Brief for United States 39.
    Just as the government has a significant interest in preventing "visual
blight" in its cities, Members of City Council of Los Angeles v. Taxpayers
for Vincent, 466 U. S. 789, 810 (1984), in "maintaining [public] parks . .
. in an attractive and intact condition," Clark, supra, at 296, and in
"avoiding congestion and maintaining the orderly movement" of persons using
a public forum, Heffron v. International Society for Krishna Consciousness,
Inc., 452 U. S. 640, 652 (1981), so the Government here has a significant
interest in protecting the integrity of the purposes to which it has
dedicated the property, that is, facilitating its customers' postal trans
actions.  Given the Postal Service's past experience with expressive
activity on its property, I cannot reject its judgment that in-person
solicitation deserves different treatment from alternative forms of
solicitation and expression.  Cf. Heff ron, supra, 665 (Blackmun, J.,
concurring in part and dissenting in part).  The same judgment has been
made for the classic public forums in our Nation's capital.  The
solicitation of money is banned in the District of Columbia on the Mall and
other parks under the control of the National Park Service.  See 36 CFR
MDRV 7.96(h) (1989).
    The Postal Service regulation, narrow in its purpose, design, and
effect, does not discriminate on the basis of content or viewpoint, is
narrowly drawn to serve an important governmental interest, and permits
respondents to engage in a broad range of activity to express their views,
including the solicitation of financial support.  For these reasons, I
agree with Justice O'Connor that the Postal Service regulation is
consistent with the protections of the First Amendment, and concur in the
judgment of the Court.


------------------------------------------------------------------------------



Subject: 88-2031--DISSENT, UNITED STATES v. KOKINDA

 


    SUPREME COURT OF THE UNITED STATES


No. 88-2031



UNITED STATES, PETITIONER v.
MARSHA B. KOKINDA et al.


on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 27, 1990]



    Justice Brennan, with whom Justice Marshall and Justice Stevens join
and with whom Justice Blackmun joins as to Part I, dissenting.
    Today the Court holds that a United States Postal Service regulation
prohibiting persons from "[s]oliciting alms and contributions" on postal
premises does not violate the First Amendment as applied to members of a
political advocacy group who solicited contributions from a sidewalk
outside the entrance to a post office.  A plurality finds that the sidewalk
is not a public forum and that the Postal Service regulation is valid
because it is "reasonable."  Justice Kennedy concludes that although the
sidewalk might well be a public forum, the regulation is permissible as
applied because it is a content-neutral time, place, or manner restriction
on protected speech.
    Neither of these conclusions is justified.  I think it clear that the
sidewalk in question is a "public forum" and that the Postal Service
regulation does not qualify as a content- neutral time, place, or manner
restriction.  Moreover, even if I did not regard the sidewalk in question
as a public forum, I could not subscribe to the plurality's position that
respondents can validly be excluded from the sidewalk, because I believe
that the distinction drawn by the postal regulation between solicitation
and virtually all other kinds of speech is not a reasonable one.  For these
reasons, I respectfully dissent.

I


A
    The plurality begins its analysis with the determination that the
sidewalk in question is not a "public forum."  See ante, at 5-6.  Our
decisions in recent years have identified three categories of forums in
which expression might take place on government property: (1) traditional,
"quintessential public forums"--"places which by long tradition or by
government fiat have been devoted to assembly and debate," such as "streets
and parks"; (2) "limited-purpose" or state- created semi-public forums
opened "for use by the public as a place for expressive activity," such as
university meeting facilities or school board meetings; and (3) nonpublic
forums or public property "which is not by tradition or designation a forum
for public communication."  Perry Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37, 45-46 (1983); see also Airport Comm'rs of Los Angeles
v. Jews for Jesus, Inc., 482 U. S. 569, 572-573 (1987).  Ironically, these
public forum categories--originally conceived of as a way of preserving
First Amendment rights, see Kalven, The Concept of the Public Forum: Cox v.
Louisiana, 1965 Sup. Ct. Rev. 1--have been used in some of our recent
decisions as a means of upholding restrictions on speech.  See, e. g.,
Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 (1988); Cornelius v.
NAACP Legal Defense and Educational Fund, Inc., 473 U. S. 788 (1985);
United States v. Albertini, 472 U. S. 675 (1985); City Council of Los
Angeles v. Taypayers for Vincent, 466 U. S. 799 (1984); Minnesota State
Board for Community Colleges v. Knight, 465 U. S. 271 (1984); Perry
Education Assn., supra; United States Postal Service v. Council of
Greenburgh Civic Assns., 453 U. S. 114 (1981); but see United States v.
Grace, 461 U. S. 171 (1983); Widmar v. Vincent, 454 U. S. 263 (1981).  I
have questioned whether public forum analysis, as the Court has employed it
in recent cases, serves to obfuscate rather than clarify the issues at
hand.  See Perry Education Assn., supra, at 62-63, n. 6 (Brennan, J.,
dissenting); Council of Greenburgh Civic Assns., 453 U. S., at 136, 140
(Brennan, J., concurring in judgment); Greer v. Spock, 424 U. S. 828,
859-860 (1976) (Brennan, J., dissenting).  Indeed, the Court's contemporary
use of public forum doctrine has been roundly criticized by commentators.
{1}
    Today's decision confirms my doubts about the manner in which we have
been using public forum analysis.  Although the plurality recognizes that
public sidewalks are, as a general matter, public forums, see ante, at 6,
the plurality insists, with logic that is both strained and formalistic,
that the specific sidewalk at issue is not a public forum.  This conclusion
is unsupportable.  "[S]treets, sidewalks, and parks, are considered,
without more, to be `public forums.' "  "Traditional public forum property
occupies a special position in terms of First Amendment protection and 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."  United States v. Grace, supra, at 177, 180.  It is
only common sense that a public sidewalk adjacent to a public building to
which citizens are freely admitted is a natural location for speech to
occur, whether that speech is critical of government generally, aimed at
the particular governmental agency housed in the building, or focused upon
issues unrelated to the government.  No doctrinal pigeonholing, complex
formula, or multipart test can obscure this evident conclusion.

1
    The plurality maintains that the postal sidewalk is not a traditional
public forum because it "was constructed solely to provide for the passage
of individuals engaged in postal business" and "leads only from the parking
area to the front door of the post office."  Ante, at 6.  This reasoning is
flawed.
    Quintessential examples of a "public forum" are those open
spaces--streets, parks, and sidewalks--to which the public generally has
unconditional access and which "have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public
questions."  Hague v. Committee for Industrial Organizations, 307 U. S.
496, 515 (1939) (opinion of Roberts, J.).  Public parks, streets, and
sidewalks are public forums because open access by all members of the
public is integral to their function as central gathering places and
arteries of transportation.  Public access is not a matter of grace by
government officials but rather is inherent in the open nature of the
locations.  As a result, expressive activity is compatible with the normal
use of a public forum and can be accommodated simply by applying the
communication-neutral rules used to regulate other, nonspeech-related
conduct on the premises.  See Grayned v. City of Rockford, 408 U. S. 104,
116 (1972) ("[t]he crucial question is whether the manner of expression is
basically incompatible with the normal activity of a particular place at a
particular time").  For the most part, on streets and sidewalks, including
the single-purpose sidewalk at issue here, communication between citizens
can be permitted according to the principle that "one who is rightfully on
a street which the state has left open to the public carries with him as
elsewhere the constitutional right to express his views in an orderly
fashion."  Jamison v. Texas, 318 U. S. 413, 416 (1943). {2}
    The wooden distinctions drawn today by the plurality have no basis in
our prior cases and, furthermore, are in apparent contradiction to the
plurality's admission that "[t]he mere physical characteristics of the
property cannot dictate forum analysis."  Ante, at 5.  It is irrelevant
that the sidewalk at issue may have been constructed only to provide access
to the Bowie Post Office.  Public sidewalks, parks, and streets have been
reserved for public use as forums for speech even though government has not
constructed them for expressive purposes.  Parks are usually constructed to
beautify a city and to provide opportunities for recreation, rather than to
afford a forum for soapbox orators or leafleteers; streets are built to
facilitate transportation, not to enable protesters to conduct marches; and
sidewalks are created with pedestrians in mind, not solicitors.  Hence, why
the sidewalk was built is not salient.
    Nor is it important that the sidewalk runs only between the parking lot
and post office entrance.  The existence of a public forum does not turn on
a particularized factual inquiry into whether a sidewalk serves one
building or many or whether a street is a dead end or a major thoroughfare.
In Boos v. Barry, 485 U. S. 312 (1988), for example, Justice O'Connor
concluded that the public sidewalks within 500 feet of the embassies of the
Governments of the Soviet Union and Nicaragua in Washington, D. C. are
public forums without considering the factors found in today's opinion.
See id., at 318.  In Frisby v. Schultz, 487 U. S. 474 (1988), Justice
O'Connor acknowledged that " `time out of mind' public streets and
sidewalks have been used for public assembly and debate, the hallmarks of a
traditional public forum."  Id., at 480 (citation omitted).  She explained
that "our decisions identifying public streets and sidewalks as traditional
public fora are not accidental invocations of a `cliche' but recognition
that `[w]herever the title of the streets and parks may rest, they have
immemorially been held in trust for the use of the public.'  No
particularized inquiry into the precise nature of a specific street is
necessary; all public streets are held in the public trust and are properly
considered traditional public fora."  Id., at 480-481 (emphasis added,
citations omitted).  Justice O'Connor further wrote that "a public street
does not lose its status as a traditional public forum simply because it
runs through a residential neighborhood" or because it is "physical[ly]
narro[w]."  Id., at 480.
    The architectural idiosyncrasies of the Bowie Post Office are thus not
determinative of the question whether the public area around it constitutes
a public forum.  Rather, that the walkway at issue is a sidewalk open and
accessible to the general public is alone sufficient to identify it as a
public forum.  As the Court of Appeals observed, "[i]t ill behooves us to
undertake too intricate a task of designation, holding this sidewalk public
and that one not. . . .  [S]uch labeling loses sight of the fact that most
sidewalks are designed as outdoor public thoroughfares and that citizens
should not be left to wonder at which ones they will be permitted to speak
and which ones not."  866 F. 2d 699, 702 (CA4 1989). {3}
    The cases that formed the foundation of public forum doctrine did not
engage in the type of fact-specific inquiry undertaken by the plurality
today.  In Cox v. Louisiana, 379 U. S. 536, 553-558 (1965), for example, we
reversed a civil rights leader's conviction for obstructing a public
passage after he organized a protest on a municipal sidewalk across the
street from the Baton Rouge courthouse.  We did not consider whether the
sidewalk was constructed to facilitate protests (an unlikely possibility),
or whether the sidewalk was a "public thoroughfare" rather than one
providing access to only a limited number of locations.  Similarly, in
Edwards v. South Carolina, 372 U. S. 229 (1963), we reversed the
convictions of civil rights demonstrators who had assembled on the grounds
of the South Carolina State House, "an area of two city blocks open to the
general public," id., at 230, without inquiring whether the State had
dedicated the statehouse grounds for such expressive activities.  In
Shuttlesworth v. Birmingham, 394 U. S. 147, 152 (1969), we did not suggest
that our constitutional analysis hinged on whether the sidewalk march had
occurred on Main Street or on a dead-end street leading only to a single
public building.  See also Carey v. Brown, 447 U. S. 455, 460 (1980);
Grayned v. Rockford, 408 U. S. 104, 120-121 (1972); Police Department of
Chicago v. Mosley, 408 U. S. 92, 96 (1972).
    Whatever the proper application of public forum doctrine to novel
situations like fund-raising drives in the federal workplace, see Cornelius
v. NAACP Legal and Educational Fund, Inc., 473 U. S. 788 (1985), or the
internal mail systems of public schools, see Perry Education Assn. v. Perry
Local Educators' Assn., 460 U. S. 37 (1983), we ought not unreflec tively
transfer principles of analysis developed in those specialized and
difficult contexts to traditional forums such as streets, sidewalks, and
parks. {4}  See n. 2, supra.  In doing so, the plurality dilutes the very
core of the public forum doctrine.  As Justice Kennedy notes, "the demand
for recognition of heightened First Amendment protection has more force
here than in those instances where the Government created a nontraditional
forum to accommodate speech for a special purpose, as was thought true with
teachers' mail boxes in Perry Educational Assn. [supra], or the Combined
Federal Campaign in Cornelius."  Ante, at 2 (opinion concurring in
judgment).  We have never applied a "reasonableness" test to speech in a
place where government property was open to the public. {5}  Indeed, even
in regulated environments where a public right of access nevertheless
exists, we have applied a higher level of scrutiny to restrictions on
speech than the plurality does today.  See Cohen v. California, 403 U. S.
15, 22 (1971); Tinker v. Des Moines Independent Community School District,
393 U. S. 503, 509 (1969).

2
    Even if I did not believe that the postal sidewalk is a "traditional"
public forum within the meaning of our cases, I would find that it is a
"limited-purpose" forum from which respondents may not be excluded absent a
showing of a compelling interest to which any exclusion is narrowly
tailored.  We have recognized that even where a forum would not exist but
for the decision of government to create it, the government's power to
enforce exclusions from the forum is narrowly circumscribed if the
government permits a wide range of expression to occur.  See Perry
Education Assn., 460 U. S., at 45; see also Widmar v. Vincent, 454 U. S.
263, 267-268 (1981); City of Madison Joint School District v. Wisconsin
Employment Relations Comm'n, 429 U. S. 167, 175-176 (1976); Southeastern
Promotions, Ltd. v. Conrad, 420 U. S. 546, 555-558 (1975).  In a
limited-purpose forum, "the Government must permit wider access to the
forum than it has otherwise intended."  Ante, at 2 (Kennedy, J., concurring
in judgment).
    The plurality acknowledges both that "the forum here has been dedicated
to some First Amendment uses and thus is not a purely nonpublic forum,"
ante, at 8, and that "the Service's generous accommodation of some types of
speech testifies to its willingness to provide as broad a forum as
possible, consistent with its postal mission."  Ante, at 12.  These
observations support a finding that the sidewalk is a limited- purpose
forum, especially in light of the wide range of expressive activities that
are permitted.  The postal regulation forbids persons only from
"[s]oliciting alms and contributions, campaigning for election to any
public office, collecting private debts, commercial soliciting and vending,
and displaying or distributing commercial advertising on postal premises."
39 CFR MDRV 232.1(h)(1) (1989).  The Government thus invites labor
picketing, soapbox oratory, distributing literature, holding political
rallies, playing music, circulating petitions, or any other form of speech
not specifically mentioned in the regulation.
    The plurality concludes that the sidewalk is not a limited- purpose
forum only by ignoring its earlier observations.  The plurality maintains
that "a practice of allowing some speech activities on postal property
do[es] not add up to the dedication of postal property to speech
activities," ante, at 8, and concludes that the Postal Service may close
off postal premises to solicitors even though it has opened the forum to
virtually every other type of speech.  The plurality's conclusion is
unsound.
    The plurality has collapsed the distinction between exclusions that
help define the contours of the forum and those that are imposed after the
forum is defined.  Because the plurality finds that the prohibition on
solicitation is part of the definition of the forum, it does not view the
regulation as operating on a public forum and hence subjects the postal
regulation to only a "reasonableness" inquiry.  If, however, the ban on
solicitation were found to be an independent restriction on speech
occurring in a limited public forum, it would be judged according to
stricter scrutiny.  See Perry Education Assn., supra, at 45-46.  The
plurality's approach highlights the fact that there is only a semantic
distinction between the two ways in which exclusions from a limited-
purpose forum can be characterized, although the two options carry with
them different standards of review.  The plurality's logic, as Justice
Blackmun has noted in a previous case, would make restrictions on access to
limited public forums self-justifying:


"The Court makes it virtually impossible to prove that a forum restricted
to a particular class of speakers is a limited public forum.  If the
Government does not create a limited public forum unless it intends to
provide an `open forum' for expressive activity, and if the exclusion of
some speakers is evidence that the Government did not intend to create such
a forum, . . . no speaker challenging denial of access will ever be able to
prove that the forum is a limited public forum.  The very fact that the
Government denied access to the speaker indicates that the Government did
not intend to provide an open forum for expressive activity, and under the
Court's analysis that fact alone would demonstrate that the forum is not a
limited public forum."  Cornelius, 473 U. S., at 825 (dissenting opinion).

    The plurality does not, and cannot, explain in the instant case why the
postal regulation establishes a policy of " `selective access,' " ante, at
8 (citation omitted), rather than constituting a separate restriction on
speech in a limited public forum.  Nor can the plurality explain how its
reasoning is consistent with our past cases.  In Carey v. Brown, 447 U. S.
455, 460 (1980), Grayned v. Rockford, 408 U. S., at 107, and Police
Department of Chicago v. Mosley, 408 U. S., at 96, for example, we held
that bans on picketing were invalid because they contained impermissible
exemptions for labor picketing.  We did not hold, as the plurality's
position might suggest, that the bans were valid because the labor
exemption was part of the forum's definition.  Similarly, the restrictions
at issue in Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 549, n.
4 (1975), and Widmar v. Vincent, 454 U. S. 263, 265-266, n. 3 (1981), could
have been-- but were not--used to show that the municipal theater and
university meeting rooms, respectively, were not public forums because they
practiced a policy of selective access. {6}
    I would find that the postal sidewalk is a public forum, either of the
"traditional" or "limited-purpose" variety.

B
    Content-based restrictions on speech occurring in either a public forum
or in a limited-purpose public forum are invalid unless they are narrowly
drawn to serve a compelling interest.  See Perry Education Assn., 460 U.
S., at 45.  Government "may also enforce regulations of the time, place,
and manner of expression which are content-neutral, are narrowly tailored
to serve a significant government interest, and leave open ample
alternative channels of communication."  Ibid.  I do not think the postal
regulation can pass muster under either standard.  Although I agree that
the Government has an interest in preventing the obstruction of post office
entrances and the disruption of postal functions, there is no indication
that respondents interfered with postal business in any way.  The Court of
Appeals found:


    "The record in this case reveals no evidence of a significant
governmental interest best served by the ban on solicitation in a public
forum.  There is no evidence that Kokinda and Pearl's solicitation
obstructed or impeded postal customers.  [Respondents] were not charged
with obstructing post office entrances, disturbing postal employees in the
performance of their duties, or impeding the public in the transaction of
postal business.  There is nothing to suggest that they harassed,
threatened, or physically detained unwilling listeners."  866 F. 2d, at 704
(Citation omitted).


I agree with the Court of Appeals that the postal regulation is invalid as
applied in this case because it "prohibits all solicitation anywhere on
postal service property.  It sweeps an entire category of expressive
activity off a public forum solely in the interest of administrative
convenience.  It does not attempt to limit nondisruptive solicitation to a
time, place, and manner consistent with post office operations; and it does
not require that evidence of disruption be shown."  Id., at 705-706.
    Justice Kennedy contends that the postal regulation may be upheld as a
content-neutral time, place, or manner regulation.  But the regulation is
not content-neutral; indeed, it is tied explicitly to the content of
speech.  If a person on postal premises says to members of the public,
"Please support my political advocacy group," he cannot be punished.  If he
says, "Please contribute $10," he is subject to criminal prosecution.  His
punishment depends entirely on what he says.
    The plurality suggests that the regulation is not based on the content
of speech, regardless of the terms of the restriction, because the
proffered governmental interest is unrelated to the communicative impact of
expression.  See ante, at 14 (discussing "[t]he Service's concern about
losing customers because of the potentially unpleasant situation created by
solicitation").  This reasoning is flawed.  Any restriction on speech, the
application of which turns on the substance of the speech, is content-based
no matter what the Government's interest may be.  See Boos, 485 U. S., at
335-338 (Brennan, J., concurring in part and concurring in judgment).  In
any event, the government interest in this case is related to the
suppression of expression because the evil at which the postal regulation
is aimed--by the admission of both the Postal Service, see 43 Fed. Reg.
38824 (1978) and the plurality, see ante, at 14--is the danger that
solicitors might annoy postal customers and discourage them from
patronizing postal offices.  But solicitors do not purportedly irk
customers by speaking unusually loudly or uncomfortably close to their
subjects.  Rather, the fear is that solicitation is bothersome because of
its content: The Post Office is concerned that being asked for money may be
embarrassing or annoying to some people, particularly when the speaker is a
member of a disfavored or unpopular political advocacy group.  For example,
the Government makes much of the 40 or 50 customer complaints received at
the Bowie Post Office while respondents solicited the public.  See Brief
for United States 35-36, and n. 11.  But the record does not demonstrate
that the complaints related to any difficulty in obtaining access to the
post office.  "For all we know, the complaints may have been generated by
the hearers' disagreement with the message of the National Democratic
Policy Committee or their disapproval of the appearance or affiliation of
the speakers."  866 F. 2d, at 705.  Although the Service's paternalism may
be well-intended, it is axiomatic that a listener's reaction to speech is
not a content-neutral basis for regulation.  Cf. United States v. Eichman,
496 U. S. ----, ---- (1990) (slip op., at 5); Texas v. Johnson, 491 U. S.
----, ---- (1989).  Speech is not subject to regulation " `simply because
it may embarrass others or coerce them into action.' "  Hustler Magazine,
Inc. v. Falwell, 485 U. S. 46, 55 (1988), quoting NAACP v. Claiborne
Hardware Co., 458 U. S. 886, 910 (1982).
    In addition, the postal regulation is not a permissible time, place, or
manner rule because its prohibition on solicitation is absolute and not
"narrowly tailored," Perry Education Assn., 460 U. S., at 45, to the
Government's interest in avoiding disruption.  Rather, the regulation is
based on the Postal Service's generalized judgment that solicitation is
more likely to be disruptive than are other types of speech.  The postal
regulation is a "time, place, or manner" rule only in the novel sense that
it permits no manner of solicitation at any time or at any place in the
forum. {7}  It is conceivable that in some instances solicitation might
cause a crowd to form and block a post office entrance because an
individual who decides to respond must "reach for a wallet, search it for
money, write a check, or produce a credit card," ante, at 12, but the
Postal Service has failed to document that this in fact has ever occurred,
let alone that it would be more than an occasional problem.  The record in
the instant case demonstrates that solicitation certainly does not
invariably disrupt postal functions.  The plurality's trumpeting of Postal
Service "real-world experience" as a valid basis for the regulation, ante,
at 13, is entirely unjustified, given that the Service's experience is
limited to solicitation in postal lobbies.  The Postal Service has never
found solicitation on exterior sidewalks to pose a danger to postal
operations. {8}
    When government seeks to prohibit categorically an entire class of
expression, it bears, at the very least, a heavy burden of justification.
See Schad v. Mount Ephraim, 452 U. S. 61, 67, 72-74 (1981) (the "exclusion
of a broad category of protected expression" demands heightened scrutiny
and evidence supporting the need for complete exclusion). {9}  I find that
the Postal Service has not met this burden and that the postal regulation
prohibiting an entire category of expression based on a broad assessment of
its likely effects cannot qualify as a valid time, place, or manner
regulation because such a prohibition "burden[s] substantially more speech
than is necessary to further the government's legitimate interests."  Ward
v. Rock Against Racism, 491 U. S. ----, ---- (1989).  " `A complete ban can
be narrowly tailored, but only if each activity within the proscription's
scope is an appropriately targeted evil.' "  Id., at ----, quoting Frisby,
487 U. S., at 485.  In other contexts we have stressed that problems
associated with solicitation must be addressed through "measures less
intrusive than a direct prohibition on solicitation."  Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620, 637 (1980); see also
Riley v. National Federation of Blind of North Carolina, Inc., 487 U. S.
781, 795 (1988).  Thus, in Heffron v. International Society for Krishna
Consciousness, Inc., 452 U. S. 640 (1981), we upheld as a valid time,
place, or manner regulation a rule requiring that solicitation in a public
fairground take place only at assigned booths.  We rejected the claim that
the rule was a "total ban" because we found that it permitted groups "to
solicit funds and distribute and sell literature from within the
fairgrounds, albeit from a fixed location."  Id., at 655, n. 16.  The
postal regulation, by contrast, prohibits solicitation altogether.
    In short, the Postal Service has made no attempt to justify its
complete exclusion of solicitation from all locations on postal property,
including exterior sidewalks.  The plurality's conclusion that a complete
ban on solicitation is warranted rests on speculation regarding the
possibility of disruption that is both inappropriate and unsupported.  As I
have commented previously, "[n]o doubt a plausible argument could be made
that the political gatherings of some parties are more likely than others
to attract large crowds causing congestion, that picketing for certain
causes is more likely than other picketing to cause visual clutter, or that
speakers delivering a particular message are more likely than others to
attract an unruly audience. . . .  [But] governments [must] regulate based
on actual congestion, visual clutter, or violence rather than based on
predictions that speech with a certain content will induce these effects."
Boos v. Barry, 485 U. S., at 335 (Brennan, J., concurring in part and
concurring in judgment).  The First Amendment demands that the Postal
Service prohibit solicitation only when it actually threatens legitimate
government interests; "[b]road prophylactic rules in the area of free
expression are suspect. . . .  Precision of regulation must be the
touchstone."  NAACP v. Button, 371 U. S. 415, 438 (1963).
    Indeed, a great irony of this case is that the Postal Service has
already promulgated legitimate time, place, and manner regulations that
fully protect its interests in preventing disruption of postal operations.
The postal regulations governing conduct on postal premises are codified in
Part 232 of the Code of Federal Regulations (Conduct on Postal Property).
Postal Service rules prohibit individuals from obstructing post office
entrances, disturbing postal employees in the performance of their duties,
or impeding the public in the transaction of postal business.  Section
232.1(e), for example, provides that:


"Disorderly conduct, or conduct which creates loud and unusual noise, or
which obstructs the usual use of entrances, foyers, corridors, offices,
elevators, stairways, and parking lots, or which otherwise tends to impede
or disturb the public employees in the performance of their duties, or
which otherwise impedes or disturbs the general public in transacting
business or obtaining the services provided on property, is prohibited."
39 CFR MDRV 232.1(e) (1989).


Similarly, MDRV 232.1(k)(2) forbids "[t]he blocking of entrances,
driveways, walks, loading platforms, or fire hydrants in or on [postal]
property."  See also MDRV 232.1(c) (prohibition on "creating any hazard to
persons or things").  Thus, although the postal regulation at issue
here--MDRV 232.1(h)(1)--bans solicitation altogether, postal regulations
restrict other forms of expression only when they actually disrupt postal
operations.  There is no reason why the rules prohibiting disruptive
conduct cannot be used to address the governmental interest in this case,
and hence there is no need for a categorical exclusion of solicitation from
sidewalks on postal property.

II
    Even if I did not believe that the sidewalk outside the Bowie Post
Office was a public forum, I nevertheless could not agree with the
plurality that the postal regulation at issue today is reasonable as
applied to respondents.  The Postal Service does not subject to the same
categorical prohibition many other types of speech presenting the same risk
of disruption as solicitation, such as soapbox oratory, pamphleteer ing,
distributing literature for free, or even flag-burning. {10}  A solicitor
who asks for funds and offers literature for sale outside the entrance to a
post office is no more likely to block access than is a leafleteer who
stands in the same place or a speaker who sets up his soapbox there.  In
fact, solicitors may be quite unlikely to attract much of an audience,
because public requests for money are often ignored.  Certainly, solicitors
are less likely to draw a crowd, and thus to disrupt postal functions, than
are eloquent orators or persons distributing popular magazines for free.
Under the regulation, a group may stage a political rally to call attention
to the problem of drug abuse  {11} and draw hundreds or even thousands of
persons to the area just outside the entrance to the post office, because
there is no general prohibition on large gatherings on postal premises.
{12}  But since there is a categorical ban on solicitation, the group would
be unable to ask a single member of the public for a contribution to
advance its cause.     This inconsistent treatment renders the prohibition
on solicitation unreasonable.  The Postal Service undeniably has a
legitimate interest in avoiding disruption of its postal facilities and
ensuring that its buildings remain accessible to the public.  But the
Government interest in preventing disruption of post office business or
harassment of postal patrons is addressed by the direct prohibitions on
such conduct in existing postal rules, see supra, at 19-20, and the Service
has not explained satisfactorily why these provisions are inadequate to
deal with any disruption caused by solicitation.
    The plurality suggests that the irksome nature of solicitation supports
the reasonableness of the postal regulation.  Even were the Postal
Service's desire to prevent the annoyance of customers a legitimate basis
for regulation, {13} such an interest could not justify the blanket ban on
solicitation alone.  Many expressive activities permitted by MDRV
232.1(h)(1) likely would trigger the same reactions in the audience.
Pamphleteers might distribute embarrassing or disturbing handbills, and
soapbox orators might shout caustic invectives at postal patrons as they
walk past, yet those activities are not subject to a categorical
prohibition.  Indeed, the Postal Service permits other types of speech that
demand an immediate response from the listener, such as inviting passersby
to sign a petition to place an initiative proposal on the ballot.  See
Meyer v. Grant, 486 U. S. 414 (1988).  The notion that solicitation is
"inherently" more invasive of the public's peace of mind is untenable.
    The Government contends that any attempt to regulate solicitation on a
case-by-case basis according to the general "disruption" regulation would
be "unadministrable" because the Service "lacks the resources to enforce
such regulation in the tens of thousands of post offices throughout the
nation."  43 Fed. Reg. 38824 (1978).  But the Government's interest in
bright-line rules is hardly creditable, given that the Postal Service has
chosen to adopt categorical restrictions on speech only with respect to
solicitation.  If such application of the general disturbance and
obstruction rules contained in 15 232.1(e) and 232.1(k)(2) is
"administrable" with respect to other types of speech, I fail to understand
how a case-by-case inquiry suddenly becomes impracticable in the context of
solicitation. {14}
    Moreover, even were the Postal Service's administrability concerns
real, the Service could quite easily design categorical rules governing
solicitation that would both obviate the need for administrative discretion
and yet fall far short of a total ban.  The Service could formulate, for
example, reasonable restrictions on the size and placement of tables, on
solicitation during peak postal hours, on the use of parking spaces by
nonpostal customers, or on the number of persons who may engage in
solicitation at the same time and place.  Although the Government would not
be required to choose the least restrictive alternative were the plurality
correct in its view that the sidewalk is a nonpublic forum, these other
approaches to the problem of disruption are so obvious that the
no-solicitation regulation can scarcely be considered a reasonable way of
addressing the Service's asserted interest in avoiding case-by-case
determinations.

III
    Some postal patrons may thank the Court for sparing them the
inconvenience of having to encounter solicitors with whose views they do
not agree.  And postal officials can rest assured in the knowledge that
they can silence an entire category of expression without having to apply
the existing postal regulations governing disruptive conduct or having to
craft more narrow time, place, or manner rules.  Perhaps only three groups
of people will be saddened by today's decision.  The first includes
solicitors, who, in a farce of the public forum doctrine, will henceforth
be permitted at postal locations to solicit the public only from such
inhospitable locations as the busy four-lane highway that runs in front of
the Bowie Post Office.  The next to be disappointed will be those members
of the public who would prefer not to be deprived of the views of
solicitors at postal locations.  The last group, unfortunately, includes
all of us who are conscious of the importance of the First Amendment.
    I respectfully dissent.

 
 
 
 
 

------------------------------------------------------------------------------
1
    See, e. g., L. Tribe, American Constitutional Law 993 (2d ed. 1988)
("[A]n excessive focus on the public character of some forums, coupled with
inadequate attention to the precise details of the restrictions on
expression, can leave speech inadequately protected in some cases, while
unduly hampering state and local authorities in others") (footnotes
omitted); Dienes, The Trashing of the Public Forum: Problems in First
Amendment Analysis, 55 Geo. Wash. L. Rev. 109, 110 (1986) ("[C]onceptual
approaches such as that embodied in the nonpublic-forum doctrine simply
yield an inadequate jurisprudence of labels"); Farber & Nowak, The
Misleading Nature of Public Forum Analysis: Content and Context in First
Amendment Adjudication, 70 Va. L. Rev. 1219, 1234 (1984) ("Classification
of public places as various types of forums has only confused judicial
opinions by diverting attention from the real first amendment issues
involved in the cases"); Post, Between Governance and Management: The
History and Theory of the Public Forum, 34 U. C. L. A. L. Rev. 1713,
1715-1716 (1987) ("The doctrine has in fact become a serious obstacle not
only to sensitive first amendment analysis, but also to a realistic
appreciation of the gov ernment's requirements in controlling its own
property.  It has received nearly universal condemnation from
commentators"); Stone, Content- Neutral Restrictions, 54 U. Chi. L. Rev.
46, 93 (1987) (current public forum analysis is plagued by a "myopic focus
on formalistic labels" that "serves only to distract attention from the
real stakes").

2
    There may be important differences between cases in which citizens have
a legal right to be present on government property and those in which
"citizens claim a right to enter government property for the particular
purpose of speaking."  Laycock, Equal Access and Moments of Silence: The
Equal Status of Religious Speech by Private Speakers, 81 Nw. U. L. Rev. 1,
48 (1986), cited in Airport Commr's v. Jews for Jesus, Inc., 482 U. S. 569,
573 (1987).  In the former class of cases--into which the instant case
falls--the Court has recognized that when citizens are going about their
business in a place they are entitled to be, they are presumptively
entitled to speak.  See Jamison v. Texas, 318 U. S. 413, 416 (1943); see
also Post, supra, at 1717, 1765-1767, 1773-1775, 1781-1784.

3
    To its credit, the plurality does not rely--as a ground for finding
that the sidewalk at issue is not a public forum--on the fact that at the
Bowie Post Office a parking lot separates the sidewalk from a nearby
highway.  The Court of Appeals supplied the ready answer to such an
argument:
    "If `the mere presence of a parking area between the street and a
sidewalk limits our scrutiny of speech-related regulations to the standard
for nonpublic fora, we issue an open invitation for government architects
and landscapers to surround public buildings with modern-day moats.'  The
First Amendment is not consigned to the mercies of architectural chicanery,
nor may a federal agency, simply by designating a sidewalk its own, spare
itself the inconvenience of political protest and speech."  866 F. 2d, at
703 (1989) (citation omitted).

4
    This is not a case involving the Government's " `discretion and control
over the management of its personnel and internal affairs.' "  Cornelius v.
NAACP Legal Defense and Educational Fund, Inc., 473 U. S. 805, quoting
Arnett v. Kennedy, 416 U. S. 134, 168 (1974) (Powell, J., concurring in
part); see also Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961)
(upholding authority of the commander of a military base to deny employment
to a civilian cook without a hearing on the basis of security concerns).
The instant case involves activities of ordinary citizens outside the post
office, not the conduct of postal employees.  I reject the plurality's
implication that the "proprietary" nature of the post office somehow
detracts from the sidewalk's status as a public forum.  Ante, at 3.  "[T]he
government may not escape the reach of the First Amendment by asserting
that it acts only in a proprietary capacity with respect to streets and
parks."  Smith v. Goguen, 415 U. S. 566, 594 (1974) (Rehnquist, J.,
dissenting) (emphasis added).  The sidewalk or street outside the White
House is no different from one outside a post office or one outside a
private store--despite the differences in what transpires inside.  The
plurality's statement that "[t]he purpose of the forum in this case is to
accomplish the most efficient and effective postal delivery system," ante,
at 10, confuses the sidewalk with the interior of the post office.
    Furthermore, I would be wary of placing so much weight on the blurry
concept of government qua "proprietor."  See Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528, 539-547 (1985); Owen v. City
of Independence, 445 U. S. 622, 644-647 (1980).  Certainly, the mere fact
that postal operations are somehow implicated here cannot give the
Government greater license to silence citizens in a public forum.  Cf.
Rutan v. Republican Party of Illinois, 496 U. S. ----, ----, n. 4 (1990)
(slip op., at 7, n. 4).  The fact that the government is acting as an
employer or as a proprietor does not exempt it from the distinct
requirements of the Equal Protection Clause, see, e. g., Mississippi Univ.
for Women v. Hogan, 458 U. S. 718, 723-724 (1982); Sugarman v. Dougall, 413
U. S. 634, 641, 648-649 (1973); Turner v. City of Memphis, 369 U. S. 350,
353 (1962) (per curiam), or the Due Process Clause, Cleveland Board of
Education v. Loudermill, 470 U. S. 532, 538-545 (1985); Perry v.
Sindermann, 408 U. S. 593, 599-603 (1972), or the Commerce Clause, see
South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 87
(1984), or the Privileges and Immunities Clause of Article IV.  See United
Building & Construction Trades Council of Camden County v. Mayor and
Council of Camden, 465 U. S. 208, 214-218 (1984).
    The plurality's reliance on Lehman v. City of Shaker Heights, 418 U. S.
298 (1974) (plurality opinion), is also misplaced.  That a city may protect
a captive audience in the small, enclosed space of a municipal bus says
little about the type of regulations that the government may adopt in the
context of an outdoor public sidewalk.  Justice Douglas, who provided the
fifth vote in Lehman in his opinion concurring in the judgment, saw a clear
distinction between the two situations.  "One who hears disquieting or
unpleasant programs in public places, such as restaurants, can get up and
leave.  But the man on the streetcar has no choice but to sit and listen,
or perhaps to sit and to try not to listen."  Public Utilities Comm'n v.
Pollak, 343 U. S. 451, 469 (1952) (Douglas, J., dissenting).  Although the
Government, within certain limits, may protect captive listeners against
unwelcome intrusions, in public locations "we expect individuals simply to
avoid speech they do not want to hear."  Frisby v. Schultz, 487 U. S., at
484; cf. Erznoznik v. City of Jacksonville, 422 U. S. 205, 210-211 (1975);
Cohen v. California, 403 U. S. 15, 21-22 (1971).

5
    Greer v. Spock, 424 U. S. 828 (1976), is readily distinguishable
because the Court in that case held, over my dissent, that a sidewalk on a
military base was not truly "open" to the public and was therefore not a
public forum.  The Court reasoned that although the public was freely
permitted to visit the base, the commanding officer's authority to exclude
not only those engaged in expressive activity, but anyone deemed by him to
be detrimental to the defense function, was "unquestioned."  Id., at 838.
Compare Flower v. United States, 407 U. S. 197, 198 (1972) (per curiam)
(reversing conviction for distributing leaflets on a military base where
the "fort commander chose not to exclude the public from the street where
petitioner was arrested" and where " `there [wa]s no sentry post or guard
at either entrance or anywhere along the route' " and " `[t]raffic flow[ed]
through the post on this and other streets 24 hours a day' ") (citation
omitted).  Of course, I disagreed with the majority's assessment of the
facts in Greer, as the plurality today points out.  See ante, at 7-8.  But
that the Court in Greer engaged in a debate over the degree to which the
sidewalk was open to the public demonstrates that the Court believed that a
sidewalk generally accessible to the public--as in the instant case--is a
public forum.  At any rate, I do not believe that our decision in Greer,
colored as it was by the special security concerns of a military base, see
424 U. S., at 837 ("[T]his Court over the years has on countless occasions
recognized the special constitutional function of the military in our
national life, a function both explicit and indispensable"); see also Brown
v. Glines, 444 U. S. 348, 353-354 (1980) (discussing Greer), is helpful in
identifying public forums outside the unique context of the military.

6
    I am encouraged by the apparent fact that a majority of the Court does
not adhere to the plurality's reasoning on this point.  Justice Kennedy's
citation to Justice Blackmun's Cornelius dissent, see ante, at 2 (Kennedy,
J., concurring in judgment), citing Cornelius, 473 U. S., at 819-820,
suggests that Justice Kennedy believes that access depends upon "the nature
of the forum and the nature of the expressive activity" and whether "the
activity [would be] compatible with normal uses of the property," 473 U.
S., at 820, not upon whether the government explicitly permits access.  See
ante, at 1-2 ("If our public forum jurisprudence is to retain vitality, we
must recognize that certain objective characteristics of government
property and its customary use by the public may control the case")
(Kennedy, J., concurring in judgment).

7
    Justice Kennedy's suggestion, ante, at 3 (opinion concurring in
judgment), that respondents could distribute literature asking for
financial support--perhaps requesting that contributions be mailed to a
particular address--is unhelpful because Justice Kennedy has simply
identified another way that respondents could raise funds short of
solicitation.  Such an alternative is indeed open to respondents, but in
choosing it they would forfeit the unique advantages of in-person
solicitation recognized by Justice O'Connor: "In a face-to-face encounter
there is a greater opportunity for the exchange of ideas and the
propagation of views than is available [through written] literature [that
is] merely informative."  Cornelius, 473 U. S., at 798.

8
    The Postal Service explained when it promulgated its regulations that:
    "Since 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.  Reflection usually is not
encouraged, and the person solicited often must make a hasty decision
whether to share his resources with an unfamiliar organization while under
the eager gaze of the solicitor.  Such confrontations, if occurring in the
confines of a small post office lobby, at a post office writing desk or
service window, or in a queue at a service window--places from which the
individual cannot escape if he or she wishes to transact postal
business--would be likely to produce hostile reactions and to cause people
to avoid post offices."  43 Fed. Reg. 38824 (1978) (emphasis added).
    The concern expressed was limited to solicitation inside postal
lobbies.  See ibid.  ("The use of lobby space for such activity has been
highly unsatisfactory") (emphasis added); see also United States v. Bjerke,
796 F. 2d 643, 650 (CA3 1986).  The fact that "most post office lobbies . .
. are too small to accommodate nonpostal public activities without
disturbing postal employees in the performance of their duties and impeding
the public in transacting postal business," 42 Fed. Reg. 63911 (1977); see
also 43 Fed. Reg. 38824 (1978), says nothing about the sidewalks outside.
The confined space of a lobby may well warrant measures that are not
permissible elsewhere.
    I do not think it appropriate to imagine for ourselves the possible
ways in which solicitation on outside sidewalks might be disruptive.  The
Postal Service, the agency with "long experience" in this regard, ante, at
13, has been silent on the matter, except insofar as the Government has
attempted to present post hoc rationalizations for the regulation long
after its promulgation.  See ante, at 13 (citing Tr. of Oral Arg.).  By
analogy, were this a straightforward administrative law case, the failure
of the Postal Service to document any danger of disruption from
solicitation on outside sidewalks would be the end of the matter.  See
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U. S. ----, ---- (1990)
(slip. op., at 18-19); Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U. S. 402, 419 (1971); SEC v. Chenery Corp., 318 U. S. 80, 87 (1943).

9
    Indeed, we have noted that "[i]n a public forum, by definition, all
parties have a constitutional right of access and the State must
demonstrate compelling reasons for restricting access to a single class of
speakers, a single viewpoint, or a single subject."  Perry Education Assn.,
460 U. S., at 55 (emphasis added).  Thus, in United States v. Grace, 461 U.
S. 171, 177 (1983), we contrasted "time, place, and manner regulations"
with "[a]dditional restrictions such as an absolute prohibition on a
particular type of expression."   The latter, we said, "will be upheld only
if narrowly drawn to accomplish a compelling governmental interest."
Ibid.

10
    I note that one of the prosecutions at issue in United States v.
Eichman, 496 U. S. ---- (1990), involved a flag-burning that occurred on a
sidewalk in front of a post office.  See United States v. Haggerty, 731 F.
Supp. 415, 416 (WD Wash. 1990).

11
    The regulation subjects to a categorical ban only "campaigning for
election to any public office."  39 CFR MDRV 232.1(h)(1) (1989).  A rally
concerning a particular issue rather than a candidate is not covered.

12
    The organizers of such a rally might well be prosecuted for obstructing
the entrance of the post office under MDRV 232.1(e) or MDRV 232.1(k)(2) if
the gathering in fact caused a disruption.  But that is precisely the
point: Other regulations, not MDRV 232.1(h)(1), protect the Postal
Service's asserted interest.

13
    The Postal Service's desire to protect customers from speech with which
they might disagree would not be a valid basis for regulation even were the
sidewalk a nonpublic forum.  While we have held that speech in a nonpublic
forum may be regulated so as to prevent disruption of the forum, see
Cornelius, 473 U. S., at 811, a restriction cannot be premised on the mere
fact that some members of the public might disapprove of a speaker's
message or means of delivery.  Such expression "is still protected speech
even in a nonpublic forum."  Airport Commer's v. Jews for Jesus, Inc., 482
U. S., at 576.

14
    The Postal Service has decided to require local postmasters to make
case-by-case assessments regarding a whole range of expression and other
conduct on postal premises, belying the Government's claim that such an
approach would be "unadministrable" with respect to solicitation.  Postal
regulations provide, for example, that photographs "for news . . .
purposes" may be taken "in entrances, lobbies, foyers, corridors, or
auditoriums when used for public meetings."  MDRV 232.1(i).  Local
postmasters obviously must decide on a case-by-case basis how to cope with
the disruption posed by camera equipment, cables, and the presence of news
media personnel.  Moreover, the regulation explicitly vests discretion in
local post office officials with respect to photographs for other than news
purposes: "Other photographs may be taken only with the permission of the
local postmaster or installation head."  Similarly, MDRV 232.1(o) grants
local officials discretion to make case-by-case judgments concerning the
appropriateness of displaying community notices and other materials of
public interest on postal bulletin boards:
    "The Postal Serice has no intention to discontinue . . . that valuable
service [of providing a place for the display of public notices and
announcements] to local communities.  The adopted regulation contains, as
did the proposed rule, language insuring that the authority of postmasters
to allow the placement in post offices of bulletin boards for the display
of public notices and announcements, will continue as before.  Thus, both
[MDRV 232.1(h)(1)(ii) and MDRV 232.1(o)(1)] contain language excepting from
their coverage, `posting notices on bulletin boards as authorized in MDRV
243.2(a) of this chapter.'
    "The reference[d] section authorizes both public and employee bulletin
boards.  Postmasters are not required to provide bulletin board space for
nongovernmental public announcements; but they are encouraged by postal
policy to provide such space for the display of notices of public
assemblies and judicial sales, official election notices issued by State or
local government, and similar announcements so long as there is sufficient
space for the effective display of scheduled postal materials and other
Federal Government notices."  43 Fed. Reg. 38824-38825 (1978).
