United States v. Kokinda
497 U.S. 720 (1990)
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Rule of Law:
A government regulation prohibiting solicitation on a postal sidewalk is constitutional because such a sidewalk, created solely to provide access to the post office from its parking lot, is a nonpublic forum where speech restrictions need only be reasonable and viewpoint-neutral.
Facts:
- Marsha B. Kokinda and Kevin E. Pearl were volunteers for the National Democratic Policy Committee.
- They set up a table on a sidewalk near the entrance of the Bowie, Maryland, Post Office to solicit contributions and distribute political literature.
- The sidewalk in question is located entirely on Postal Service property and provides the sole means of access for customers from the parking lot to the post office building.
- While Kokinda and Pearl were present, postal employees received between 40 and 50 complaints from customers.
- The Bowie postmaster asked Kokinda and Pearl to leave, but they refused to do so.
- Postal inspectors then arrested them and seized their materials.
Procedural Posture:
- Marsha Kokinda and Kevin Pearl were tried and convicted by a United States Magistrate in the District of Maryland for violating a Postal Service regulation against solicitation.
- Respondents appealed their convictions to the U.S. District Court for the District of Maryland, which affirmed the convictions.
- Respondents then appealed to the U.S. Court of Appeals for the Fourth Circuit, an intermediate appellate court.
- The Fourth Circuit reversed the convictions, holding that the postal sidewalk was a traditional public forum and the regulation was unconstitutional.
- The United States, as petitioner, successfully petitioned the Supreme Court of the United States for a writ of certiorari to review the Fourth Circuit's decision.
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Issue:
Does a United States Postal Service regulation that prohibits soliciting alms and contributions on postal premises violate the First Amendment as applied to individuals soliciting on a sidewalk owned by the Postal Service that leads from the parking lot to the post office entrance?
Opinions:
Plurality - Justice O'Connor
No, the Postal Service regulation does not violate the First Amendment. A sidewalk on postal property, constructed solely to provide access from a parking lot to the post office building, is not a traditional public forum. Unlike a general municipal sidewalk, its purpose is not for public passage but for postal business. The Postal Service has also not dedicated the sidewalk to expressive activity, making it a nonpublic forum. Therefore, the regulation must only be reasonable and viewpoint-neutral. The ban on solicitation is reasonable because solicitation is inherently disruptive to the Postal Service's business, as it impedes traffic flow and requires patrons to stop, listen, and act, unlike passive leafleting. The government's decision is based on its experience with the administrative burden and disruption caused by solicitation, making the categorical ban a reasonable, content-neutral restriction on the time, place, and manner of speech.
Concurring - Justice Kennedy
No, the postal regulation does not violate the First Amendment. It is not necessary to decide whether the sidewalk is a public or nonpublic forum. The regulation meets the standards for a valid time, place, and manner restriction on protected expression, which are applicable even in a public forum. The regulation is content-neutral, is narrowly tailored to serve the significant governmental interest of facilitating postal transactions without disruption, and leaves open ample alternative channels for communication, such as distributing literature that solicits mail-in contributions. The ban on in-person solicitation for immediate payment is a reasonable distinction given the government's interest in protecting its patrons and the integrity of its operations.
Dissenting - Justice Brennan
Yes, the Postal Service regulation violates the First Amendment. The sidewalk is a traditional public forum because it is a sidewalk open and accessible to the general public; its specific purpose or architectural layout is irrelevant. Even if not a traditional forum, it is a limited-purpose public forum because the Postal Service permits a wide range of other expressive activities. The regulation is an unconstitutional content-based restriction because it singles out solicitation for a complete ban while permitting other potentially disruptive speech. The ban is not narrowly tailored to the government's interest in preventing disruption, as existing regulations already prohibit obstructing entrances or disturbing postal business, and there is no evidence that this particular solicitation was disruptive. A complete ban on an entire category of speech is an unnecessarily broad restriction.
Analysis:
This case significantly refines the public forum doctrine by establishing that not all government-owned sidewalks are traditional public forums. By focusing on the specific purpose and function of the property—in this case, facilitating postal business—the Court allows for greater governmental control over speech on property that might physically resemble a public forum. This decision gives the government more latitude to restrict expressive activities on its specialized, business-oriented properties, shifting the analysis from a property's physical characteristics to its intended and actual use. Future cases involving speech on government property will likely place greater emphasis on the purpose for which the property is maintained.
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