United States Court of Appeals
For the First Circuit
No. 08-1511
RINALDO DEL GALLO, III,
Plaintiff, Appellant,
v.
ROGER PARENT, United States Postal Service Postmaster;
PITTSFIELD POST OFFICE,
Defendants, Appellees,
ANTHONY RIELLO, Chief, Pittsfield Police Department,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
David F. Klein with whom Shara L. Boonshaft, Heller Ehrman
LLP, William C. Newman, and American Civil Liberties Union of
Massachusetts were on brief for appellant.
Thomas R. Lotterman, Duke K. McCall, III, Carol E. Head, and
Bingham McCutchen LLP on brief for Humane Society of the United
States, amicus curiae.
Karen L. Goodwin, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief
for appellees.
February 25, 2009
LYNCH, Chief Judge. This case concerns whether the Free
Speech Clause of the First Amendment compels the U.S. Postal
Service to allow campaigning activity for election to public office
on a post office sidewalk, constructed and used to give postal
patrons access to the door of the post office and distinguishable
from neighboring public sidewalks.
Plaintiff Rinaldo Del Gallo, III, a candidate for public
office in Massachusetts, brought suit in 2006 seeking to prevent
the Pittsfield Post Office from enforcing a Postal Service
regulation that restricted his ability to collect signatures for
his campaign on its sidewalk. The district court granted summary
judgment for the defendants, Pittsfield Postmaster Roger Parent and
the Pittsfield Post Office, finding that the restriction did not
violate the First Amendment. See Del Gallo v. Parent, 545 F. Supp.
2d 162, 183-84 (D. Mass. 2008). We affirm.
I.
A. The Modern Postal Service and the Regulation
The Constitution empowers Congress "'To establish Post
Offices and post Roads' and 'To make all Laws which shall be
necessary and proper' for executing this task." U.S. Postal Serv.
v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 121 (1981)
(quoting U.S. Const. art. I, § 8). Congress has directed the
Postal Service to "plan, develop, promote, and provide adequate and
efficient postal services at fair and reasonable rates and fees,"
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39 U.S.C. § 403(a), and to "maintain an efficient system of
collection, sorting, and delivery of the mail nationwide," id.
§ 403(b)(1). Congress expressly authorized the Postal Service to
adopt rules and regulations to accomplish these ends. Id.
§ 401(2); see also Council of Greenburgh Civic Ass'ns, 453 U.S. at
123.
The Postal Service has regulations concerning conduct on
its property, which are set forth at 39 C.F.R. § 232.1. At issue
is the application of paragraph (h) of that regulation, which bans
"campaigning for election to any public office" on post office
property. The regulation was applied to stop plaintiff from
campaigning on the Pittsfield Post Office sidewalk. Along with the
ban on election campaigning, which is at issue here, the regulation
also bans "collecting signatures on petitions," "[s]oliciting alms
and contributions," "vending for commercial purposes," and other
related conduct on postal property, but these bans are not at
issue.
Significantly, the Postal Service's regulation itself
draws distinctions based on the character and location of its
property. The ban on election campaigning applies to sidewalks on
post office property. 39 C.F.R. § 232.1(a). But the ban
explicitly does not apply to postal sidewalks "along the street
frontage of postal property . . . that are not physically
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distinguishable from adjacent municipal or other public sidewalks."
Id. § 232.1(a)(ii).1
As the Supreme Court noted in another First Amendment
challenge to a Postal Service restriction, "only by review of the
history of the postal system and its present statutory and
regulatory scheme can the constitutional challenge to [the
restriction] be placed in its proper context." Council of
Greenburgh Civic Ass'ns, 453 U.S. at 121. The regulation at issue
relates to one of the Postal Service's longstanding problems and
grows out of Congress's and the Service's attempts to address this
problem.
Through much of its history, the post office was closely
tied to partisan politics. Until 1970, the post office was
organized as a Cabinet-level department within the executive branch
of the federal government. See H.R. Rep. No. 91-1104 (1970),
reprinted in 1970 U.S.C.C.A.N. 3649, 3657. The Postmaster General
was appointed by the President, and his "presence in the
President's Cabinet creat[ed] a link between partisan politics and
1
The carve-out for postal sidewalks which are
indistinguishable from municipal sidewalks was added in 2005
following the D.C. Circuit's opinion in Initiative & Referendum
Institute v. U.S. Postal Service, 417 F.3d 1299 (D.C. Cir. 2005).
That opinion reviewed the facial validity of the portion of the
regulation which, at that time, banned "soliciting signatures on
petitions, polls, or surveys." Id. at 1302. The regulation has
since been amended so that it now bans only "collecting signatures
on petitions, polls, or surveys," 39 C.F.R. § 232.1(h) (emphasis
added). See Conduct on Postal Property, 70 Fed. Reg. 72,078,
72,078 (Dec. 1, 2005).
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the [post office]." Id. at 3660. Congress was deeply involved in
the management of the post office, including rate setting,
selection of local postmasters, and the details of labor relations.
See id. at 3653, 3662, 3667; R. Geddes, Saving the Mail 7-9 (2003).
As one aspect of the political entanglement, the post office was
also an important source of political patronage jobs. H.R. Rep.
No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661 (stating that
"vestiges of 19th century political patronage practices have
persisted in the Post Office Department"); Geddes, supra, at 8
("[P]ostmasters were often chosen to provide political patronage
under a[] . . . system [that] allowed members of Congress and
occasionally local party officials to choose the local
postmaster."); S. Calabresi & C. Yoo, The Unitary Executive During
the Second Half-Century, 26 Harv. J.L. & Pub. Pol'y 667, 672 (2003)
(describing the nineteenth century Post Office Department as being
"heavily patronage-influenced"); S. Kernell & M. McDonald, Congress
and America's Political Development: The Transformation of the Post
Office from Patronage to Service, 43 Am. J. Pol. Sci. 792, 792,
796-97 (1999) (stating that "[t]hroughout the nineteenth century
the political fortunes of members of Congress depended heavily on
their ability to send patronage home to their states" and that
"[m]ost of these [patronage] jobs were located in the post
office"); L. Kramer, Putting the Politics Back into the Political
Safeguards of Federalism, 100 Colum. L. Rev. 215, 280 & n.256
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(2000) ("State and local parties . . . exerted influence over
federal administration through spoils rotation, providing personnel
to staff local federal post offices . . . ."); J. Mashaw,
Administration and "The Democracy": Administrative Law from Jackson
to Lincoln, 1829-61, 117 Yale L.J. 1568, 1621, 1691 (2008) (noting
the "massive use of patronage" in the Post Office Department in the
nineteenth century). These historic associations between the post
office and electoral politics are no longer considered acceptable.
In 1970, Congress passed the Postal Reorganization Act,
Pub. L. No. 91-375, 84 Stat. 719, "to deal with the problems of
increasing deficits and shortcomings in the overall management and
efficiency of the Post Office," Council of Greenburgh Civic Ass'ns,
453 U.S. at 122. In doing so, Congress recognized that partisan
political entanglement was one of the foremost problems facing the
post office. See H.R. Rep. No. 91-1104, reprinted in 1970
U.S.C.C.A.N. at 3661 ("[O]ne of the cardinal needs of postal reform
is to seal off the Postal Service from partisan political
influence."). The close connection between partisan politics and
Post Office Department contributed to inefficiencies and to
problems in rate setting and management. See id. at 3653, 3660-61,
3667; Geddes, supra, at 7-11.
Congress was also concerned with the effect that the
connection between electoral politics and the post office had on
public perception. See H.R. Rep. No. 91-1104, reprinted in 1970
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U.S.C.C.A.N. at 3653 ("[D]etailed congressional involvement in the
technical details of postal economics . . . [led to] a widespread
public impression that the influence of special interests has a
determining effect on the structure of today's postal rates.").
Moreover, Congress determined that "political patronage practices
[had] persisted in the Post Office Department too long." H.R. Rep.
No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661; see also id.,
reprinted in 1970 U.S.C.C.A.N. at 3654 ("Nineteenth century customs
of political patronage have no place in a late 20th century postal
system.").
Thus, Congress sought to have "the Post Office . . .
taken out of politics and politics out of the Post Office." H.R.
Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3654. The
Postal Reorganization Act abolished the Post Office Department as
a Cabinet-level Department and established in its place the United
States Postal Service as a government-owned corporation. Id. at
3657; see also Council of Greenburgh Civic Ass'ns, 453 U.S. at 122.
Significantly, Congress directed the new Postal Service be funded
by its own revenue and "run more like a business than had its
predecessor, the Post Office Department." Franchise Tax Bd. v.
U.S. Postal Serv., 467 U.S. 512, 519-20 (1984). In an increasingly
competitive market, "Congress . . . directed the Service to become
a self-sustaining service industry and to 'seek out the needs and
desires of its present and potential customers -- the American
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public.'" United States v. Kokinda, 497 U.S. 720, 732 (1990)
(plurality opinion) (quoting H.R. Rep. No. 91-1104, reprinted in
1970 U.S.C.C.A.N. at 3668).
Congress sought to insulate the Postal Service from
electoral politics by "establishing institutional buffers between
the President and the Congress on the one hand, and the officers
and employees of the Postal Service on the other." H.R. Rep. No.
91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661. The Postal
Reorganization Act distanced elected officials from rate setting
and the day-to-day management of the Postal Service and put
additional protections in place to address the problem of
patronage. See id. It also empowered the Postal Service to adopt
rules and regulations in furtherance of these objectives. See 39
U.S.C. § 401(2); H.R. Rep. No. 91-1104, reprinted in 1970
U.S.C.C.A.N. at 3674.
In 1972, shortly after the enactment of the Postal
Reorganization Act, the Postal Service published a set of
regulations governing conduct on postal property. See Conduct on
Postal Property, 37 Fed. Reg. 24,346, 24,346-47 (Nov. 16, 1972).
Five years later, in 1977, the Service proposed a number of
amendments to these regulations, including a prohibition on
campaigning for election to public office. See Conduct on Postal
Property, 42 Fed. Reg. 63,911, 63,911 (Dec. 21, 1977). The
proposed campaign amendment was said to be consistent with existing
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regulations prohibiting the display on bulletin boards of
photographs and other materials designed to influence elections.
Id. This was part of a set of amendments based on the experience
of the Postal Service. See id. at 63,911-12. The new regulations
were adopted in 1978. Conduct on Postal Property, 43 Fed. Reg.
38,824, 38,824 (Aug. 31, 1978). The stated purpose of the ban on
campaigning for election to public office was "to prevent abuses
and to preclude any appearance of partisan endorsement or
preference." Id.
Thus, the regulation was intended to further address the
problems of political entanglement with which Congress was
concerned in passing the Postal Reorganization Act. See Longo v.
U.S. Postal Serv. (Longo I), 953 F.2d 790, 794 (2d Cir.) (stating
that the "primary justification for the prohibition against
campaigning on postal property is that it enables the Postal
Service to avoid both actual entanglement in partisan politics and
the appearance of political favoritism" and that without the
prohibition, postmasters "would be hard pressed to avoid the sort
of embroilment in partisan politics that Congress tried to prevent
when it reorganized the Postal Service in 1970"), vacated on other
grounds, 506 U.S. 802 (1992).
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B. Del Gallo's Election Campaigning Activity at the
Pittsfield Post Office
The Pittsfield Post Office2 sits at the corner of Fenn
Street and Willis Street in downtown Pittsfield. The building is
shaped roughly like a sideways "L," with the short portion pointing
north toward Fenn Street and the long portion pointing west toward
Willis Street. Between the two portions is a parking lot for
postal customers. The parking lot extends north up to the Fenn
Street municipal sidewalk. Motorists enter and exit the parking
lot from Fenn Street through two driveways that intersect the
municipal sidewalk. To the west of the parking lot is a small
grass-covered patch that slopes downward to the Willis Street
municipal sidewalk. Pedestrians get to the post office from the
municipal sidewalk on Fenn Street by using the post office
sidewalk, which follows the shape of a "U" with an elongated base,
running south from Fenn Street between the parking lot and the
grassy patch, then east along the front of the post office and past
the front door, then turning north along the eastern side of the
post office back to Fenn Street. Both times it meets the Fenn
Street sidewalk at a right angle. The post office sidewalk is also
accessible from the Willis Street sidewalk through a short flight
of concrete stairs that intersect the grassy patch and lead
directly to the bottom portion of the "U."
2
While the national entity is the U.S. Postal Service, it
runs local post offices.
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Beyond providing access for postal customers, the post
office sidewalk and stairs may also be used by pedestrians as a
"shortcut" between the Willis Street and Fenn Street sidewalks.
This path is no shorter than simply walking along the municipal
sidewalks, and it involves walking up or down stairs. It is
possible for a pedestrian, however, to avoid the two driveways that
intersect the Fenn Street sidewalk by taking the stairs and walking
along the front of the post office. One long-serving post office
employee, Ronald Ricci, who worked as a customer service supervisor
since 1986, stated that he has never seen the post office sidewalk
actually used in this manner.
In April 2004, plaintiff was running for a position on
the Massachusetts Governor's Council.3 He attempted to solicit
signatures for his election campaign in the lobby of the Pittsfield
Post Office. A customer complained. Supervisor Ricci, who did not
know of the regulation, instructed plaintiff that he could not
solicit signatures inside the post office, but that he could do so
outside on the post office sidewalk, so long as he did not block
the doorway or bother people. Plaintiff went outside and
campaigned. A number of customers complained to Ricci that
plaintiff was harassing them, stepping in front of them and
3
The Governor's Council is a body of eight councilors,
elected every two years, who provide advice to the governor of
Massachusetts. See Mass. Const. pt. 2, ch. 2, § 3, art. I, amended
by Mass. Const. amend. arts. XVI, LXXXII.
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pressing them for signatures; one woman said plaintiff was
intimidating and scaring her. Ricci went outside, explained to Del
Gallo that customers were complaining, and asked Del Gallo to stop
harassing customers. Ricci did not ask Del Gallo to leave or to
stop campaigning.
The following day, Del Gallo returned and solicited
signatures for his campaign inside the post office. Ricci again
told him he could not solicit signatures in the lobby. Del Gallo
left. Ricci was not aware of Del Gallo doing any soliciting
outside; it was raining.
Later that month, Del Gallo again returned to solicit
signatures for his campaign. That morning, he encountered Paula
Cooke, a post office supervisor, as she approached the front door
of the post office. Cooke's work ordinarily did not take her to
the front door or lobby of the post office. She was filling in as
Officer in Charge that day due to the absence of a coworker. Del
Gallo asked Cooke to sign his petition and Cooke, who was aware of
the postal regulation, informed plaintiff that it was impermissible
for him to campaign on the post office sidewalk. When Del Gallo
ignored her, Cooke went inside and asked James Curley, another
customer service supervisor, to tell Del Gallo he could not
continue his campaigning in that location. As he was leaving to
speak with Del Gallo, Curley was informed by the window clerks that
customers were complaining that Del Gallo had been harassing them
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outside. Curley told Del Gallo that he would need to move his
campaigning to the nearby public sidewalk; Del Gallo refused to do
so. Later, more customers complained that Del Gallo was harassing
them; after reviewing the Postal Operations Manual, Cooke and
Curley decided to call the Pittsfield Police Department. Police
officers arrived and asked plaintiff to stop campaigning on the
post office sidewalk; plaintiff refused, and he was arrested. He
did not file suit at the time.
Before plaintiff's arrest on or about April 24, 2004,4
the Pittsfield Post Office sidewalk had been used by people
campaigning for public office and gathering signatures for
nomination papers and ballot initiatives, although the extent of
such usage is unclear from the record. Del Gallo claimed that
before this time, "countless candidates for political office . . .
were allowed to gather signatures at the Pittsfield Post Office."
Jonathan Levine, the publisher of the Pittsfield Gazette, stated in
his affidavit that "over the years" he had "seen numerous potential
candidates for office gathering nomination paper signatures" on
trips to the Pittsfield Post Office. And Jonathan Melle, who had
been a candidate for state senator, stated that "on or about the
time period of the entire month of February and up to the middle of
March 2004," he gathered signatures on the sidewalk of the
4
Curley recalls the date of plaintiff's arrest as April
21, 2004, while Cooke states it was April 24, 2004. The difference
is immaterial.
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Pittsfield Post Office. None of the affidavits state that the
observed campaign activities before April 2004 took place with the
permission of Postal Service officials, that permission of
officials was requested, or that such officials were aware of the
activity. None of the affidavits state that any such activities
took place after April 24, 2004.
Affidavits filed by postal employees provide a framework
for the pre-April 2004 observations contained in the affidavits of
Del Gallo, Levine, and Melle. The affidavits demonstrate several
different things. To the extent postal officials were aware of
such election campaigning activities, there was irregular
enforcement of the regulation before April 2004 due to a lack of
knowledge of the regulation by some employees. The Postal Service
officials who were aware of the regulations enforced it. Ricci was
unaware at that time that the Postal Service had a regulation
barring campaigning and collecting signatures on postal sidewalks.
He stated that, "on occasion," he received requests from
individuals seeking to conduct campaigning activity on Pittsfield
Post Office property. He admittedly, in his ignorance of the
regulation, had told some individuals before Del Gallo's arrest in
April 2004 that they could conduct such activities on the sidewalk
outside the post office. After April 2004, when he was aware of
the regulation, he enforced it.
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Curley, who was aware of the regulation, enforced it
before April 2004. He described "two occasions" in which he
instructed individuals that they were not allowed to campaign on
the postal sidewalk and that they would have to move to one of the
public sidewalks. Curley also told Del Gallo in April 2004 to stop
soliciting signatures on the sidewalk because it was contrary to
regulations. Curley said his usual duties did not involve his
being in the lobby or interacting with customers. When he went out
to tell Del Gallo to stop, it was not because he saw Del Gallo on
the sidewalk, but because he was told to do so by Cooke, who was
the Officer in Charge that day. Cooke stated that "[o]ther than
Mr. Del Gallo," she was "not aware that any political candidates
[had] used [the] Postal Service sidewalk to campaign and solicit
signatures." Further, she was aware of his sidewalk activities
because she was returning to the post office through the front
door. Cooke's job mostly kept her in a work room at the rear of
the post office, where she could see neither the sidewalk nor the
lobby.
It is undisputed that following Del Gallo's arrest in
April 2004, the regulation has been consistently enforced. Ricci
stated that since April 2004, two individuals asked to solicit
signatures to run for public office on the postal sidewalk; he told
both they could do so only on the public sidewalk.
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In 2006, plaintiff once again ran for Governor's Council,
his prior effort having failed. Plaintiff was required to gather
a thousand certified signatures for his campaign by May 2, 2006.
He conferred on a number of occasions that year with Postmaster
Roger Parent, to request permission to gather signatures for his
campaign on the post office sidewalk. Del Gallo told Parent that,
in his view, under the D.C. Circuit's then-recent decision in
Initiative & Referendum Institute v. U.S. Postal Service, 417 F.3d
1299 (D.C. Cir. 2005), it was illegal for the post office to
prevent him from campaigning on its sidewalks. Parent conferred
with counsel and denied plaintiff's requests.
On March 27, 2006, plaintiff and a companion were
gathering signatures for plaintiff's campaign on the Fenn Street
municipal sidewalk, near the post office. At some point that day,
police officers told plaintiff that he was not allowed to campaign
on the post office's property. Plaintiff asked the officers
whether he would be allowed to do so if he merely stood on the post
office sidewalk and directed those interested in signing his
petition to the public sidewalk, where his companion would be
standing. After consulting with post office staff, the officers
informed plaintiff this was not allowed.
Plaintiff brought suit on April 7, 2006, before a single
Justice of the Massachusetts Supreme Judicial Court. The suit
sought to enjoin the Pittsfield police and Postmaster Parent from
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preventing plaintiff's campaigning on the post office sidewalk; it
also sought a declaration that it was unconstitutional to prevent
plaintiff from gathering signatures for his campaign on that
sidewalk. The case was removed to federal district court on April
18, 2006. On March 19, 2007, plaintiff moved for summary judgment.
On April 24, defendants also moved for summary judgment. The
parties filed various affidavits.
The district court granted summary judgment in favor of
defendants. Del Gallo, 545 F. Supp. 2d at 184. The court found,
first, that 39 C.F.R. § 232.1(h) was applicable to the activity at
issue in this case because plaintiff was engaged in "campaigning,"
see id. at 173-75, and because the sidewalk on which he was
attempting to do so was distinguishable from the surrounding
municipal sidewalks, thus bringing it into the purview of the
regulation as amended in 2005, see id. at 175. Second, the court
held that the sidewalk outside the Pittsfield Post Office was
neither a traditional nor a designated public forum. See id. at
176-80. In light of the nature of the forum, the court found that
the Postal Service's ban on campaigning for election was
constitutional because it was reasonable and viewpoint neutral.
See id. at 180-81. Finally, the court rejected plaintiff's claim
of selective enforcement, finding that there was no evidence,
beyond plaintiff's speculation, of any pattern of unlawful
favoritism. See id. at 181-82.
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Plaintiff timely appealed.
II.
We review de novo the district court's grant of summary
judgment, drawing all reasonable inferences in favor of the non-
moving party. New Eng. Reg'l Council of Carpenters v. Kinton, 284
F.3d 9, 19 (1st Cir. 2002). Summary judgment is appropriate only
where "there is no genuine issue as to any material fact" and "the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(c); see also Kinton, 284 F.3d at 19. "We engage in de novo
review of ultimate conclusions of law and mixed questions of law
and fact in First Amendment cases." Ridley v. Mass. Bay Transp.
Auth., 390 F.3d 65, 75 (1st Cir. 2004).
As an initial matter, to the extent plaintiff has raised
not only an as-applied challenge but also a facial challenge5 to
the pertinent provision of 39 C.F.R. § 232.1(h), we quickly dispose
of this claim. "In a facial attack case, it is plaintiff's burden
to show that the law has no constitutional application." Naser
Jewelers, Inc. v. City of Concord, 513 F.3d 27, 33 (1st Cir. 2008).
Plaintiff has not come close to meeting this burden. See McGuire
v. Reilly, 386 F.3d 45, 57 (1st Cir. 2004); see also United States
5
The Humane Society of the United States, whose concern is
primarily with another portion of the regulation regarding
"collecting signatures on petitions, polls, or surveys," 39 C.F.R.
§ 232.1(h), not with campaigning for election to public office,
filed a brief as amicus curiae in support of plaintiff's facial
challenge.
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v. Bjerke, 796 F.2d 643, 648 (3d Cir. 1986). Nor has plaintiff
attempted to establish that the regulation is overbroad. See
Virginia v. Hicks, 539 U.S. 113, 118-20 (2003); see also Initiative
& Referendum Inst., 417 F.3d at 1312-13; Longo I, 953 F.2d at 797-
98. We thus turn to the as-applied challenge.
Plaintiff's attempts to gather signatures for his
election campaigns is undoubtedly a form of speech protected by the
First Amendment. See Burson v. Freeman, 504 U.S. 191, 196 (1992)
(plurality opinion); Longo I, 953 F.2d at 793. This protection,
however, is not absolute. "Even protected speech is not equally
permissible in all places and at all times." Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799 (1985); see also
Kinton, 284 F.3d at 19; Knights of Columbus, Council No. 94 v. Town
of Lexington, 272 F.3d 25, 31 (1st Cir. 2001); Longo I, 953 F.2d at
793; Monterey County Democratic Cent. Comm. v. U.S. Postal Serv.,
812 F.2d 1194, 1196 (9th Cir. 1987).
It is "well settled that the government need not permit
all forms of speech on property that it owns and controls." Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678
(1992) (citing Council of Greenburgh Civic Ass'ns, 453 U.S. at
129); accord, e.g., Kokinda, 497 U.S. at 725 (plurality opinion);
United States v. Belsky, 799 F.2d 1485, 1488 (11th Cir. 1986). The
government, "no less than a private owner of property, has power to
preserve the property under its control for the use to which it is
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lawfully dedicated." Greer v. Spock, 424 U.S. 828, 836 (1976)
(quoting Adderley v. Florida, 385 U.S. 39, 47 (1966)); accord
Council of Greenburgh Civic Ass'ns, 453 U.S. at 129-30.
Specifically, the Postal Service here is acting as
proprietor. "Where the government is acting as a proprietor,
managing its internal operations, rather than acting as lawmaker
with the power to regulate or license, its action will not be
subjected to the heightened review to which its actions as a
lawmaker may be subject." Int'l Soc'y for Krishna Consciousness,
505 U.S. at 678; accord, e.g., Kokinda, 497 U.S. at 725 (plurality
opinion) (citing Lehman v. City of Shaker Heights, 418 U.S. 298
(1974); Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 896
(1961)); Ridley, 390 F.3d at 79 ("[A] lower level of scrutiny
usually applies when the government acts as proprietor."); Jacobsen
v. U.S. Postal Serv., 993 F.2d 649, 654 (9th Cir. 1993).
The parties and the district court approached this case
as one to be analyzed under the forum analysis doctrine.6 The
6
The utility and coherence of the forum analysis doctrine
have been the subject of criticism. See, e.g., Int'l Soc'y for
Krishna Consciousness, 505 U.S. at 693-94 (Kennedy, J., concurring
in the judgments) ("Our public forum doctrine ought not to be a
jurisprudence of categories rather than ideas . . . ."); Kokinda,
497 U.S. at 741-43 & n.1 (Brennan, J., dissenting) (criticizing the
plurality's use of forum analysis as "doctrinal pigeonholing" and
collecting sources of criticism); L. Tribe, American Constitutional
Law § 12-24, at 987, 992 (2d ed. 1988) (describing the doctrine as
"quite manipulable and problematic" and noting that "whether or not
a given place is deemed a 'public forum' is ordinarily less
significant than the nature of the speech restriction"); R. Post,
Between Governance and Management: The History and Theory of the
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Supreme 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." Kokinda,
497 U.S. at 726 (plurality opinion) (quoting Cornelius, 473 U.S. at
800); accord, e.g., Int'l Soc'y for Krishna Consciousness, 505
U.S. at 678; Knights of Columbus, 272 F.3d at 31. Under this
approach, the validity of a restriction is determined by examining:
(1) "the nature of the forum in which a restriction applies"; and
(2) "the type of restriction." Kinton, 284 F.3d at 19-20. We will
utilize forum analysis since the Supreme Court has continued to
utilize the doctrine and has used it twice in First Amendment
challenges to Postal Service regulations, see Kokinda, 497 U.S. at
725-37 (plurality opinion); Council of Greenburgh Civic Ass'ns, 453
U.S. at 128-34.
Plaintiff correctly says that since Kokinda was a
plurality opinion, its forum analysis does not dictate our analysis
of the forum question. In Kokinda the Supreme Court upheld a
separate restriction on "[s]oliciting alms and contributions," 39
C.F.R. § 232.1(h), on a sidewalk in front of a post office, see
Public Forum, 34 UCLA L. Rev. 1713, 1715-16 & n.7 (1987) ("[The
public forum doctrine] has received nearly universal condemnation
from commentators and is in . . . a state of disrepair . . . .").
We have elsewhere noted that this approach has been criticized as
particularly unhelpful where the government is operating in a
commercial context. Ridley, 390 F.3d at 75.
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Kokinda, 497 U.S. at 722-23 (plurality opinion). The four-Justice
plurality found that the postal sidewalk in Kokinda was a non-
public forum, id. at 727, 730 (plurality opinion), and the four-
Justice dissent came to the opposite conclusion, id. at 752
(Brennan, J., dissenting). The deciding concurring opinion
withheld judgment on the forum issue.7 Id. at 738 (Kennedy, J.,
concurring in the judgment).
As such, this plurality decision is instructive, but not
dispositive of the forum analysis. Other courts agree. See
Initiative & Referendum Inst., 417 F.3d at 1313 (finding that
Kokinda "'provides no definitive guidance' on the forum status of
postal sidewalks"); Jacobsen, 993 F.2d at 654-55 (finding that
Kokinda does not give "a definitive answer on whether [postal
sidewalks] are public fora"); Longo v. U.S. Postal Serv. (Longo
II), 983 F.2d 9, 11 (2d Cir. 1992) (stating that the court was "not
necessarily bound by the Supreme Court's plurality opinion
in . . . Kokinda" but choosing to follow that analysis).
A. The Nature of the Forum
Our first inquiry is whether the sidewalk at issue in
this case is a traditional public forum, of the sort that has
"'immemorially . . . time out of mind' been held in the public
7
The opinion did state, however, that there was a
"powerful argument" that the postal sidewalk in question was "more
than a nonpublic forum." Id. at 737 (Kennedy, J., concurring in
the judgment).
-22-
trust and used for purposes of expressive activity." Int'l Soc'y
for Krishna Consciousness, 505 U.S. at 680 (omission in original)
(quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)).
"[R]egulation of speech on government property that has
traditionally been available for public expression is subject to
the highest scrutiny." Id. at 678. We examine both the
characteristics of the property and its history and purpose. See
id. at 679-80; Kinton, 284 F.3d at 20-21; see also Kokinda, 497
U.S. at 728-29 (plurality opinion) ("[T]he location and purpose of
a publicly owned sidewalk is critical to determining whether such
a sidewalk constitutes a public forum.").
It is quite clear that the First Amendment would not
entitle plaintiff to campaign inside the Postal Service building or
in its doorway. It is also quite clear that First Amendment
expression would be protected on the municipal sidewalks on Fenn
Street and Willis Street, just as it is on the large public
sidewalks at the base of the many steps leading up to the majestic
colonnade of the U.S. Supreme Court, United States v. Grace, 461
U.S. 171, 178-80 (1983). The sidewalk at issue in this case is in
between those two different ends of the spectrum.
We have previously said that some spaces, "such as public
streets, sidewalks, and parks," are "presumptively public fora,"
such that "in most cases no particularized inquiry into their
precise nature is necessary." Kinton, 284 F.3d at 20. But
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Kinton's observation must be understood in the context of the
Supreme Court's recognition that "the First Amendment does not
guarantee access to property simply because it is owned or
controlled by the government." Council of Greenburgh Civic Ass'ns,
453 U.S. at 129. Not all sidewalks owned by the large variety of
government bodies are alike and not all sidewalks are public fora.
That conclusion is mandated by the Court's decision in Greer, 424
U.S. at 835-38. See Kokinda, 497 U.S. at 727 (plurality opinion)
(holding that "[t]he presence of sidewalks and streets within the
base [in Greer] did not require a finding that it was a public
forum"); Kinton, 284 F.3d at 20. A particularized inquiry is
required here. In this case, the "nature of the locus . . . [and]
its history" do not support a finding that sidewalk outside the
Pittsfield Post Office is a traditional public forum. Kinton, 284
F.3d at 20-21.
The Postal Service sidewalk here "does not have the
characteristics of public sidewalks traditionally open to
expressive activity." Kokinda, 497 U.S. at 727 (plurality
opinion). In analyzing the physical nature of this forum, the fact
that the nearby municipal sidewalk may well be a public forum is
not the critical issue. Rather, the Supreme Court has emphasized
that "separation from acknowledged public areas may serve to
indicate that the separated property is a special enclave, subject
to greater restriction." Int'l Soc'y for Krishna Consciousness,
-24-
505 U.S. at 680; accord Grace, 461 U.S. at 180, 183 (focusing on
whether there was any "separation" or any "indication whatever to
persons stepping from the street to the curb and sidewalks . . .
that they [had] entered some special enclave"); see also Kinton,
284 F.3d at 22; Monterey County Democratic Cent. Comm., 812 F.2d at
1197; Bjerke, 796 F.2d at 647-48. In this case, the postal
sidewalk was physically distinguishable, such that a person
stepping onto the Post Office property would be aware he had
departed from the municipal sidewalk.
The record also establishes that the Postal Service
sidewalk on which plaintiff attempted to campaign is clearly
separate from the nearby municipal sidewalks. The Postal Service
sidewalk meets the municipal sidewalk on Fenn Street twice at right
angles, but the sidewalks are otherwise separated by the Post
Office parking lot. The Postal Service sidewalk is separated from
the municipal sidewalk on Willis Street by an inclined grass-
covered area; the two sidewalks are connected only by a short
flight of concrete stairs. The fact that postal sidewalks almost
inevitably touch municipal sidewalks cannot be the basis for a
finding that the two are indistinguishable, as the district court
properly noted, see Del Gallo, 545 F. Supp. 2d at 175. Here, the
divide between Post Office property and the municipal sidewalks was
obvious. See Grace, 461 U.S. at 179-80; Greer, 424 U.S. at 830;
Paff v. Kaltenbach, 204 F.3d 425, 431 (3d Cir. 2000); Jacobsen, 993
-25-
F.2d at 656; Longo II, 983 F.2d at 11-12; Monterey County
Democratic Cent. Comm., 812 F.2d at 1197; Belsky, 799 F.2d at 1489;
Bjerke, 796 F.2d at 649.
The past uses and purpose of this Postal Service sidewalk
also support the conclusion that it is not a traditional public
forum. Traditional public forums are "places which by long
tradition or by government fiat have been devoted to assembly and
debate." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460
U.S. 37, 45 (1983). In contrast, the Pittsfield Post Office
sidewalk has not consistently, historically "been used for public
assembly and debate," nor was it intended to be used as such. See
Frisby v. Schultz, 487 U.S. 474, 480 (1988).
As for purpose, the Postal Service sidewalk in question
is there to provide customers access to the entry to the Pittsfield
Post Office. It is neither a public thoroughfare nor a gathering
place. See Kokinda, 497 U.S. at 727-28 (plurality opinion) ("[T]he
postal sidewalk was constructed solely to provide for the passage
of individuals engaged in postal business . . . [and] not to
facilitate the daily commerce and life of the neighborhood or
city."); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc.,
452 U.S. 640, 651 (1981) (describing a public street as "a
necessary conduit in the daily affairs of the locality's citizens
. . . [and] a place where people may enjoy the open air or the
company of friends and neighbors in a relaxed environment");
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Lederman v. United States, 291 F.3d 36, 44 (D.C. Cir. 2002)
(contrasting the postal sidewalk in Kokinda from the sidewalk
surrounding the Capitol's East Front, which "facilitat[es] tourist
access to . . . a centerpiece of our democracy" and serves as "a
place from which tourists may view and photograph the Capitol");
Belsky, 799 F.2d at 1489 ("These walkways are intended to
accommodate traffic to and from the post office for the conduct of
postal business and have not traditionally been sites for
expressive conduct."); Bjerke, 796 F.2d at 649 ("The walkways in
question were not dedicated to serve the traditional functions of
streets or parks but rather for the particular function of
accommodating post office patrons on official business . . . .").
As to past usage, this Postal Service sidewalk, unlike
ordinary municipal sidewalks, has functioned historically not as a
place to "promot[e] 'the free exchange of ideas'" but to allow
customers to have easy access to the Pittsfield Post Office's
products and services, as is necessary for a business that "must
provide services attractive to the marketplace." Int'l Soc'y for
Krishna Consciousness, 505 U.S. at 682 (quoting Cornelius, 473 U.S.
at 800); accord Kokinda, 497 U.S. at 728 (plurality opinion);
Belsky, 799 F.2d at 1489; Bjerke, 796 F.2d at 649 ("[T]he function
of Postal Service property is to facilitate the provision of
efficient postal services, and not to provide a public platform for
political advocacy." (citing 39 U.S.C. § 101(a))).
-27-
Notwithstanding this, plaintiff argues this Postal
Service sidewalk must be considered a traditional public forum
because it had been used for political election campaigning before
April 2004, when plaintiff was first arrested for refusing to leave
the Postal Service sidewalk, and because pedestrians may at times
use the postal sidewalk as a shortcut between the two municipal
sidewalks. There is no claim it was used for election campaigning
after April 24, 2004. Plaintiff's evidence, even taking all
inferences in his favor, is not sufficient to change the "dominant
character" of this forum. See Kinton, 284 F.3d at 22 (holding that
even if the public had regular access to Fish Pier, and even if
Massport's policy was "erratically enforced," this was not enough
to "convert the Fish Pier into a traditional public forum"); see
also Ridley, 390 F.3d at 78.
The Pittsfield Post Office sidewalk is also not made into
a designated public forum by this past usage because there was no
affirmative intent to create such a forum. "The government does
not create a public forum by inaction or by permitting limited
discourse, but only by intentionally opening a nontraditional forum
for public discourse." Ridley, 390 F.3d at 76 (quoting Cornelius,
473 U.S. at 802) (internal quotation marks omitted). The record
reveals no evidence of such affirmative intent by the Postal
Service in this case. See Kokinda, 497 U.S. at 730 (plurality
opinion); Ridley, 390 F.3d at 76; Monterey County Democratic Cent.
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Comm., 812 F.2d at 1197-98; Belsky, 799 F.2d at 1489 n.8; Bjerke,
796 F.2d at 649-50.
B. The Reasonableness of the Regulation
Although the Pittsfield Post Office sidewalk is a non-
public forum, the regulation must still be both viewpoint neutral
and reasonable to be constitutional. Ridley, 390 F.3d at 82;
Kinton, 284 F.3d at 20. The regulation, which bars election
campaigning regardless of the identity of the candidate or the
opinions he or she espouses, is clearly viewpoint neutral. See
Ridley, 390 F.3d at 82 (defining the "essence of viewpoint
discrimination" as "a governmental intent to intervene in a way
that prefers one particular viewpoint in speech over other
perspectives on the same topic"); see also Longo II, 983 F.2d at
12; Monterey County Democratic Cent. Comm., 812 F.2d at 1198;
Belsky, 799 F.2d at 1489. We thus turn to its reasonableness.
The reasonableness standard for a viewpoint-neutral
restriction in non-public forum "is not a particularly high
hurdle." Ridley, 390 F.3d at 90; see also Int'l Soc'y for Krishna
Consciousness, 505 U.S. at 683. Indeed, "[t]he 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." Cornelius, 473 U.S. at 808. In light of
all the circumstances, we find the regulation in this case is more
-29-
than merely reasonable. See Longo II, 983 F.2d at 12; Longo I, 953
F.2d at 794-95.
The reasonableness of a regulation is weighed "in light
of the purposes served by the forum." Ridley, 390 F.3d at 82; see
also Kinton, 284 F.3d at 20. "The purpose of the forum in this
case is to accomplish the most efficient and effective postal
delivery system," Kokinda, 497 U.S. at 732 (plurality opinion), by
providing access to post office customers.
The Postal Service's stated rationale for disallowing
election campaigning on its sidewalks is "to prevent abuses and to
preclude any appearance of partisan endorsement or preference."
Conduct on Postal Property, 43 Fed. Reg. at 38,824; see also Longo
I, 953 F.2d at 794.8
It is well-established that a politically neutral
government entity's interest in avoiding the appearance of
political entanglement is a valid justification for limiting speech
in a non-public forum. Cornelius, 473 U.S. at 809 ("[A]voiding the
appearance of political favoritism is a valid justification for
limiting speech in a nonpublic forum."); Greer, 424 U.S. at 839
(upholding the military's regulation banning certain political
campaigning activities within the Fort Dix Military Reservation on
8
A different regulation, 39 C.F.R. § 232.1(e), bans
"[d]isturbances," such as "conduct which . . . impedes or disturbs
the general public in transacting business or obtaining the
services provided on [postal] property." Plaintiff's brief does
not discuss this separate regulation.
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the grounds that the restriction was reasonably justified by the
need to keep the military "insulated from both the reality and the
appearance of acting as a handmaiden for partisan political causes
or candidates"); Longo I, 953 F.2d at 794-95; Monterey County
Democratic Cent. Comm., 812 F.2d at 1199; see also Berner v.
Delahanty, 129 F.3d 20, 27 (1st Cir. 1997).
This justification is particularly weighty given the
history of the Postal Service and its problematic historical
associations with partisan politics. The Postal Service could
reasonably conclude that in order to fulfill its mandate of
maintaining an efficient, nationwide system of postal services, see
39 U.S.C. § 403(b)(1), and in order to be viable as a business in
an increasingly competitive market, it would need to shed its past
image of an institution affiliated with particular candidates or
parties and not regain such an image. See Longo I, 953 F.2d at
794-95; Monterey County Democratic Cent. Comm., 812 F.2d at 1199.
Moreover, as the Second Circuit recognized in Longo I, if
campaigning for electoral office were permitted on Postal Service
property, most likely there would be competition among vying
candidates for use of that space, and the Postal Service would have
to regulate the usage, which would involve choosing among
candidates. Longo I, 953 F.2d at 794. This is the type of
engagement which Congress wants the Service to avoid. Id. The
interests served by the restriction are analogous to the Hatch
-31-
Act's command that federal employees refrain from playing a role in
any political campaign activities. Id. at 795. The Postal Service
has an entirely legitimate reason to avoid being placed in this
position, and in light of this history and the purposes of the
postal sidewalk, the Service's restriction on campaigning is more
than reasonable.
Del Gallo argues that the defendants must justify the
regulations by producing evidence that a postal patron, or anyone
else, upon seeing plaintiff campaigning on the Pittsfield Post
Office sidewalk, would conclude that the Postal Service endorses
plaintiff's candidacy. But the avoidance of the appearance of
political association involves a broader set of interests, which
are not limited to endorsement.
Further, Del Gallo uses an incorrect legal test. In
Perry, the Supreme Court rejected the argument that a regulation
was unreasonable because "there [was] no showing in the record of
past disturbances . . . or evidence that future disturbance would
be likely." Perry, 460 U.S. at 52 n.12. The Court stated that it
had "not required that such proof be present to justify the denial
of access to a non-public forum on the grounds that the proposed
use may disrupt the property's intended function." Id.; see also
Cornelius, 473 U.S. at 810 ("[T]he Government need not wait until
havoc is wreaked to restrict access to a nonpublic forum."); cf.
Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) (holding that a
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government employer "need not show an actual adverse effect" or
wait for actual disruption or harm to occur before terminating an
employee under the Garcetti/Pickering test).
Moreover, the reasonableness of the regulation is not
judged solely by reference to plaintiff's particular activity.
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 296-97
(1984). Rather, we must consider the effect of political
candidates campaigning for election on postal service-identified
sidewalks across the country. See Longo I, 953 F.2d at 794; see
also Council of Greenburgh Civic Ass'ns, 453 U.S. at 133 ("If
Congress and the Postal Service are to operate as efficiently as
possible a system for the delivery of mail which serves a Nation
extending from the Atlantic Ocean to the Pacific Ocean, from the
Canadian boundary on the north to the Mexican boundary on the
south, it must obviously adopt regulations of general character
having uniform applicability throughout the more than three million
square miles which the United States embraces."). Particularly in
light of its history and Congress's mandate, the Postal Service's
regulation is a reasonable response.9
9
In Grace, the Supreme Court, while again recognizing that
seeking to avoid the appearance of improper influence is a valid
governmental concern, found that this goal was not sufficiently
furthered by a restriction on the sidewalks surrounding the Supreme
Court building; because these sidewalks were completely
indistinguishable from the surrounding municipal sidewalks, the
Court "doubt[ed] that the public would draw a different inference
from a lone picketer carrying a sign on the sidewalk around the
building than it would from a similar picket on the sidewalks
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Plaintiff has another category of arguments. He argues
that even if the Postal Service's stated rationale were reasonable
on its own, the regulation still is not reasonable when viewed in
the context of other activities which are allowed, such as the
activity of requesting signatures for ballot initiatives. Del
Gallo argues that if the Postal Service is concerned about the
appearance of political entanglement, it is not reasonable that it
would ban campaigning for office while allowing people to advocate
on its sidewalks for even the most controversial initiatives.
Plaintiff's argument turns the law of non-public fora on
its head by creating incentives for all-or-nothing access, with no
room between. If accepted, it could lead to unnecessary
curtailment of speech. "In a non-public forum, the reasonableness
standard is satisfied as long as there is a plausible basis for
distinguishing between restricted activities and allowed
activities." Kinton, 284 F.3d at 24. The Postal Service has at
least a plausible basis for distinguishing between a candidate's
own election campaigning and campaigning for ballot initiatives,
especially in light of the particular historical problems with
which Congress was concerned in passing the Postal Reorganization
Act. Ballot initiatives, no matter how controversial, are focused
across the street." Grace, 461 U.S. at 183. This logic does not
apply to the present case, however, since the much shorter Postal
Service sidewalk is obviously distinguishable from the surrounding
municipal sidewalks and can be identified with the post office.
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on issues. Initiatives do not raise the same concerns over the
appearance of partisan political entanglement, favoritism toward a
candidate, or possible patronage. Such "common-sense," plausible
distinctions are "sufficient . . . to uphold a regulation under
reasonableness review." Kokinda, 497 U.S. at 734-35 (plurality
opinion) (citation omitted) (quoting Heffron, 452 U.S. at 665
(Blackmun, J., concurring in part and dissenting in part))
(internal quotation marks omitted); see also Berner, 129 F.3d at
28-29.
Acceptance of plaintiff's argument would create a Catch-
22 under the First Amendment for the Postal Service. The Postal
Service has determined that it can adequately address its concerns
by limiting some forms of political expression on its property
while permitting other forms. Under plaintiff's reasoning, the
Service's attempt to allow some expressive activity in this non-
public forum would be treated as evidence of unreasonableness under
the First Amendment. The Supreme Court has identified the flaw in
this type of reasoning. See Kokinda, 497 U.S. at 733 (plurality
opinion) ("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."). The Postal Service should not be
-35-
found to have violated the First Amendment precisely because it
attempted to tailor its restriction more narrowly. Moreover, in
the context of this non-public forum, the reasonableness of the
restriction is enhanced by the availability of alternative public
forums for expression very close by. Bjerke, 796 F.2d at 650.
Plaintiff was free to campaign on the municipal sidewalks, just a
few feet away and easily visible from the Postal Service sidewalk.
C. Del Gallo's Selective Enforcement Argument
A regulation that is viewpoint neutral and reasonable is
nonetheless unconstitutional if it is enforced in a manner that
"prefer[s] the message of one speaker over another." McGuire, 386
F.3d at 62; see also Thomas v. Chi. Park Dist., 534 U.S. 316, 325
(2002) ("Granting waivers to favored speakers (or, more precisely,
denying them to disfavored speakers) would of course be
unconstitutional . . . ."). Plaintiff makes a two-part argument:
that before his arrest in April 2004, the Pittsfield Post Office
had allowed numerous other candidates for political office to
campaign on its sidewalks, and that it only enforced the regulation
against him because of his controversial views.
Plaintiff's selective enforcement claim is based on
events that occurred before his arrest in April 2004, since in the
years following plaintiff's arrest, it is uncontested that the
regulation has been consistently applied.
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At the very least, in order to win such a challenge,
plaintiff would need to show "a pattern of unlawful favoritism."
McGuire, 386 F.3d at 64 (quoting Thomas, 534 U.S. at 325) (internal
quotation marks omitted); see also id. at 63 (suggesting that a
showing of invidious intent by the enforcers may also be
necessary). The undisputed evidence does not support plaintiff's
claim on either ground. The postal sidewalk had been used for
political campaigning activities prior to plaintiff's arrest in
2004 (although it is unclear how frequently). And the regulation
was enforced inconsistently: some candidates were allowed to
campaign on the Pittsfield Post Office sidewalk, while others were
told they could not, depending on which Postal Service employee was
involved in supervising the sidewalk. Notably, however, at least
two candidates besides plaintiff had been asked to move their
campaigning to the municipal sidewalk; and one of the candidates
who was allowed to campaign on the sidewalk was plaintiff himself.
Thus, drawing all reasonable inferences in Del Gallo's favor, the
evidence of a pattern of "favoritism" remains insufficient as a
matter of law. See McGuire, 386 F.3d at 64-65; see also Clark, 468
U.S. at 295 n.6; Desyllas v. Bernstine, 351 F.3d 934, 944 (9th Cir.
2003).
III.
The judgment of the district court is affirmed.
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