United States v. Kokinda

497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571, 1990 U.S. LEXIS 3460, 58 U.S.L.W. 5013
CourtSupreme Court of the United States
DecidedJune 27, 1990
Docket88-2031
StatusPublished
Cited by676 cases

This text of 497 U.S. 720 (United States v. Kokinda) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571, 1990 U.S. LEXIS 3460, 58 U.S.L.W. 5013 (1990).

Opinions

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 [723]*723“[sjoliciting 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 indicate 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 inspec[724]*724tors 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 §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 distributing 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 §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.

The United States’ 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. 807 (1989).

[725]*725I — I

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 operations] . . . .” 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 [726]*726is valid in these circumstances unless it i? 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 controversial 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,

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Bluebook (online)
497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571, 1990 U.S. LEXIS 3460, 58 U.S.L.W. 5013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kokinda-scotus-1990.