Initiative & Refer v. USPS

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
INITIATIVE AND REFERENDUM )
INSTITUTE et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 00-1246 (RWR)
)
UNITED STATES POSTAL SERVICE, )
)
Defendant. )
_____________________________ )

MEMORANDUM OPINION

Plaintiffs challenge the constitutionality of an amended

United States Postal Service (“USPS”) regulation that prohibits

collecting signatures for petitions, polls or surveys on certain

USPS sidewalks, arguing that the restriction is overbroad because

the regulation applies to a substantial number of postal

sidewalks that are public forums. The parties conducted a survey

of postal facilities in an attempt to quantify the extent of

expressive activity on USPS sidewalks and have filed renewed

cross-motions for summary judgment. Because material facts are

not in dispute, the regulation no longer applies to exterior USPS

sidewalks that are indistinguishable from public sidewalks, and

the plaintiffs have not shown that the interior sidewalks to

which the regulation still applies are public forums or that the

regulation is unreasonable or void for vagueness, the defendant’s

motion will be granted and the plaintiffs’ motion will be denied.
 - 2 -

BACKGROUND

The background of this case is set out in Initiative &

Referendum Inst. v. U.S. Postal Serv., 116 F. Supp. 2d 65 (D.D.C.

2000) (“IRI I”), Initiative & Referendum Inst. v. U.S. Postal

Serv., 297 F. Supp. 2d 143 (D.D.C. 2003) (“IRI II”), and

Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299

(D.C. Cir. 2005) (“IRI III”). Briefly, USPS regulations restrict

certain conduct on postal property. The relevant regulation had

stated at the time this action was brought:

Soliciting alms and contributions, campaigning for
election to any public office, collecting private
debts, soliciting and vending for commercial purposes
(including, but not limited to, the vending of
newspapers and other publications), displaying or
distributing commercial advertising, soliciting
signatures on petitions, polls, or surveys (except as
otherwise authorized by Postal Service regulations),
and impeding ingress to or egress from post offices
are prohibited.

39 C.F.R. § 232.1(h)(1) (2002) (emphasis added). The underlined

language, added in 1998, gave rise to this suit in which the

plaintiffs challenge the regulation’s application to exterior

postal property. See IRI I, 116 F. Supp. 2d at 67-68. After

summary judgment was granted in favor of USPS on the grounds that

the regulation was content neutral, promoted a significant

governmental interest, and left open ample alternative channels

of communication, IRI II, 297 F. Supp. 2d at 147, the plaintiffs

appealed. On appeal, the D.C. Circuit concluded that USPS’ ban

on soliciting signatures could not be upheld as a time, place, or
 - 3 -

manner restriction if applied to a public forum. IRI III, 417

F.3d at 1312. The court of appeals further concluded that a

facial challenge did not require proof that all exterior postal

properties constitute public forums. Rather, the regulation

would be overbroad “if a substantial number of external postal

properties constitute public forums.” Id. at 1313. The court of

appeals opined that it “seem[ed] likely that many urban post

offices do [have Grace1 sidewalks], and that the regulation’s

restraint on protected speech is thus substantial[.]” Id. at

1314. The court of appeals remanded the case for a determination

of “whether the Postal Service’s regulation ‘abridges protected

speech . . . in a good number of cases.’” Id. (alteration in

original) (quoting Ruggiero v. FCC, 317 F.3d 239, 248 (D.C. Cir.

2003) (Randolph, J., concurring)).

Following the court of appeals’ decision, USPS amended

§ 232.1(h)(1) and it now states:

Soliciting alms and contributions, campaigning for
election to any public office, collecting private
debts, soliciting and vending for commercial purposes

1
In United States v. Grace, 461 U.S. 171, 179-80 (1983),
the Supreme Court held that sidewalks on the outer boundaries of
government property that were indistinguishable from public
sidewalks did not lose their status as public forums merely
because they abutted property dedicated for uses other than free
speech. These types of sidewalks are referred to as Grace
sidewalks. They are distinct from interior sidewalks on postal
properties that are physically distinguishable from public
sidewalks, which the Supreme Court analyzed in United States v.
Kokinda, 497 U.S. 720 (1990). These types of sidewalks are
referred to as Kokinda sidewalks.
 - 4 -

(including, but not limited to, the vending of
newspapers and other publications), displaying or
distributing commercial advertising, collecting
signatures on petitions, polls, or surveys (except as
otherwise authorized by Postal Service regulations),
are prohibited.

39 C.F.R. § 232.1(h)(1) (2010) (emphasis added). USPS also

modified § 232.1 such that it no longer applies to “sidewalks

along the street frontage of postal property falling within the

property lines of the Postal Service that are not physically

distinguishable from adjacent municipal or other public

sidewalks, and any paved areas adjacent to such sidewalks that

are not physically distinguishable from such sidewalks.” 39

C.F.R. § 232.1(a)(ii) (2010).

Also after the remand, the parties conducted a survey of

selected postal properties to determine the type and extent of

expressive activity that takes place on various postal sidewalks.

They sent questionnaires to the facility manager at each retail

post office in twelve postal Districts,2 constituting 4,513 of

the 32,621 retail postal facilities nationwide that existed at

the time of the survey. (Def.’s Stmt. ¶¶ 22-23.) Seventy-nine

2
“The specific Districts were chosen to provide retail
offices that would be reflective of urban, suburban and rural
locales, office size and a geographic spread throughout the
contiguous United States.” (Def.’s Mem. of P. & A. in Supp. of
Def.’s Renewed Mot. for Summ. J., Decl. of Gregory M. Whiteman
¶ 3.) The parties sent surveys to the following districts:
Greater South Carolina, Columbus, Philadelphia Metro, Greater
Michigan, Central New Jersey, Connecticut, San Francisco,
Atlanta, Central Florida, Rio Grande, Colorado/Wyoming, and
Spokane. (Id. ¶ 4.)
 - 5 -

percent of these surveyed postal facilities responded, yielding

3,566 completed questionnaires. (Def.’s Mem. of P. & A. in Supp.

of Def.’s Renewed Mot. for Summ. J. (“Def.’s Mem.”), Decl. of

Gregory M. Whiteman ¶ 12.) Although the “Districts selected are

representative of postal Districts nationwide[,]” they “were not

chosen on a statistical basis and therefore the survey was not

designed to be a valid statistical representation of postal

Districts nationwide.” (Def.’s Stmt. ¶ 23.) The survey divided

postal sidewalks into four categories:

A. Sidewalks at the border of the postal property
that are continuations of and/or indistinguishable
from adjacent municipal or public sidewalks. . . .
B. Sidewalks within, but not at the border of, postal
property that run along any side of the post
office building. . . .
C. Sidewalks that provide ingress/egress to the post
office, i.e. pathways from the street or parking
lot to the front door. . . .
D. Other

(Def.’s Mem., Ex. B., Postmaster Questionnaire ¶¶ 3, 10.) For

each type of sidewalk, the survey asked about the type and

frequency of expressive activity.3 The survey instructed the

facility manager to report not only on the manager’s current

facility, but on all facilities that the manager had managed in

3
Expressive activities included soliciting signatures,
leafleting, picketing, protesting, public gathering, and
displaying signs. (Def.’s Mem., Ex. B., Postmaster Questionnaire
¶¶ 5, 12.) Frequencies included never, less than once per year,
one to two times per year, three to six times per year,
approximately monthly, and several times per month, in addition
to “[d]on’t know/[u]nsure[.]” (Id. ¶¶ 6, 13.)
 - 6 -

the past. (Id. § 2.) There were 6,053 facilities in the final

data set. (Pls.’ Mem. of P. & A. in Supp. of Pls.’ Renewed Mot.

for Summ. J. (“Pls.’ Mem.”), Decl. of Joseph B. Kadane ¶ 3.) As

to the ultimate number of sidewalks on which expressive activity

took place, the plaintiffs assert that there are 518 records

showing responsive activity (id. ¶ 4(e)), and USPS asserts that

there are 562 sidewalks “where expressive activity was

indicated[.]”4 (See Def.’s Mem., Decl. of Gregory M. Whiteman

¶ 15.)

The plaintiffs have moved for summary judgment, arguing that

the amended § 232.1(h)(1) is facially unconstitutional because a

substantial number of Kokinda5 sidewalks are public forums, the

regulation is not reasonable even if the Kokinda sidewalks are

nonpublic forums, and the regulation is void for vagueness.6 The

plaintiffs also seek to enjoin USPS from applying the regulation

to Grace sidewalks. USPS has also moved for summary judgment,

4
The difference is not material to the analysis.
5
See n.1, supra.
6
The plaintiffs’ motion does not renew their challenge to
the regulation as applied to the twelve exemplary post offices
identified in the complaint. The plaintiffs’ supporting
memorandum refers to those post offices only for the purpose of
supporting the plaintiffs’ argument that the regulation at issue
is facially unconstitutional. Cf. Handy v. Shaw, Bransford,
Veilleux & Roth, Civil Action No. 00-2336 (CKK), 2006 WL 3791387,
at *6 n.6 (D.D.C. Dec. 22, 2006) (considering argument raised in
previous motion for summary judgment that defendants “explicitly
incorporate[d] by reference” in their renewed motion for summary
judgment).
 - 7 -

arguing that the non-Grace sidewalks are not public forums, and

that the amended § 232.1(h)(1) is valid because it is reasonable.

DISCUSSION

Summary judgment is appropriate where the record shows that

“there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c)(2); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C.

Cir. 2009). A party seeking summary judgment must provide the

district court with a factual record sufficient to demonstrate

the absence of a genuine issue of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party

may support its motion successfully if it “‘inform[s] the

district court of the basis for its motion, and identif[ies]

those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of

a genuine issue of material fact.’” Frito-Lay, Inc. v.

Willoughby, 863 F.2d 1029, 1032 (D.C. Cir. 1988) (quoting Celotex

Corp., 477 U.S. at 323) (internal citation omitted).

Ordinarily, a litigant has standing to vindicate only his

own constitutional rights. See Members of City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984).

However, a plaintiff can seek to invalidate all enforcement of a

law that abridges speech protected by the First Amendment –– such
 - 8 -

that it cannot be applied to the plaintiff or to others –– by

“showing that [the] law punishes a ‘substantial’ amount of

protected free speech, ‘judged in relation to the statute’s

plainly legitimate sweep[.]’” Virginia v. Hicks, 539 U.S. 113,

118 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973)). Cf. New York v. Ferber, 458 U.S. 747, 773 (1982)

(concluding that statute with a “tiny fraction” of “arguably

impermissible applications” was not overbroad). Facial

invalidation is “strong medicine” and should be applied “only as

a last resort.” Broadrick, 413 U.S. at 613.

I. FORUM ANALYSIS

Because “[n]othing in the Constitution requires the

Government freely to grant access to all who wish to exercise

their right to free speech on every type of Government property

without regard to the nature of the property or to the disruption

that might be caused by the speaker's activities[,]” the 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.” Cornelius v.

NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 799-800

(1985). There are three types of forums: traditional public

forums, public forums created by government designation, and

nonpublic forums. Marlin v. D.C. Bd. of Elections and Ethics,
 - 9 -

236 F.3d 716, 718 (D.C. Cir. 2001) (citing Cornelius, 473 U.S. at

802). A forum is considered public “if it historically has been

devoted to the free exchange of views; streets and parks are

quintessential examples. Even if a forum was not traditionally

open, the government may designate it a public forum by making it

generally available for expressive use by the general public or

by a particular class of speakers[.]”7 Bryant v. Gates, 532 F.3d

888, 895 (D.C. Cir. 2008) (internal quotation marks and citations

omitted). “In determining the extent to which the public may be

guaranteed access to a particular location on government

property, ‘the nature of the forum and the conflicting interests

involved’ remain important considerations.” IRI I, 116 F. Supp.

2d at 70 (quoting Lehman v. City of Shaker Heights, 418 U.S. 298,

302 (1974)). A sidewalk is generally presumed to be a public

forum because, like streets and parks, it has historically been a

setting for free speech. See Henderson v. Lujan, 964 F.2d 1179,

1182 (D.C. Cir. 1992).

7
IRI III did not disturb the holdings of IRI I, 116 F.
Supp. 2d at 75, that “[e]ven if USPS designated exterior post
office property as a public forum in which citizens were
permitted to gather signatures for initiatives, USPS is permitted
to close that designated public forum to such a use in the
future, so long as the closure is not content-based[,]” and that
the regulation would pass muster with respect to a designated
public forum because it is “content-neutral[.]”
 - 10 -

A. Grace sidewalks

When categorizing a sidewalk that bears “apparent similarity

to ones of the classic variety[,]” the government bears the

burden of overcoming the presumption that the walkways are public

forums by showing that they are “overwhelmingly specialized.”8

Id. In United States v. Grace, 461 U.S. 171, 180 (1983), the

Supreme Court concluded that the walkways on the Supreme Court

building grounds were a public forum because there was “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.” However, that the public may move

freely through a particular area does not necessarily mean that

the property is a public forum. See Greer v. Spock, 424 U.S.

828, 836-38 (1976) (recognizing that the property at issue was

intended to facilitate the business of a military installation in

training soldiers and not to provide a public forum for speech).

Regulations may restrict the time, place, and manner of

expressive activity in a public forum only if such regulations

are content-neutral, narrowly tailored to serve a significant

8
The plaintiffs assert that this presumption applies to all
sidewalks. (See Pls.’ Mem. of P. & A. in Opp’n to Def.’s Renewed
Mot. for Summ. J. at 2-3.) However, the government bears the
burden of showing that sidewalks are not public forums only for
sidewalks of the “classic variety,” Henderson, 964 F.2d at 1182,
which Kokinda sidewalks are not, since they are physically
distinguishable from public sidewalks. See infra I(B)(1).
 - 11 -

governmental interest, and leave open ample alternative channels

for communication. Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45 (1983). The D.C. Circuit held that the

version of § 232.1(h)(1) then in effect unconstitutionally

infringed First Amendment rights when applied to public forums

because the regulation was not narrowly tailored to achieving the

government’s legitimate interests in minimizing disruption to

postal business and providing unimpeded ingress and egress to

post offices for customers and its employees. IRI III, 417 F.3d

at 1307. Although the court of appeals remanded the case for a

determination of whether the regulation abridged a substantial

amount of protected speech –– which would render it

unconstitutionally overbroad –– because it applied to Grace

sidewalks, the court of appeals anticipated that USPS could moot

the issue by amending the regulation to exclude those sidewalks.

Id. at 1318 (stating that the question of whether “the regulation

is facially invalid . . . may be pretermitted if the Postal

Service amends the regulation to exclude [Grace] sidewalks from

the prohibition”).

USPS has made this very modification. The regulation no

longer prohibits signature gathering on postal property

consisting of Grace sidewalks. See 39 C.F.R. § 232.1(a)(ii)

(2010). Citing City of Mesquite v. Aladdin’s Castle, Inc., 455

U.S. 283 (1982), the plaintiffs argue that, even in light of this
 - 12 -

modification, “[i]n the absence of an injunction from this Court,

the government remains free to amend its regulation at a later

date to ban signature gathering . . . on Grace sidewalks.”

(Pls.’ Mem. at 5.) USPS claims that the modification to the

regulation renders the challenge moot with respect to Grace

sidewalks. (Def.’s Mem. of P. & A. in Opp’n to Pls.’ Cross-Mot.

for Summ. J. at 2-8.)

“‘Federal courts lack jurisdiction to decide moot cases

because their constitutional authority extends only to actual

cases or controversies.’” Matthews v. District of Columbia, 675

F. Supp. 2d 180, 187 (D.D.C. 2009) (quoting Larsen v. U.S. Navy,

525 F.3d 1, 4 (D.C. Cir. 2008)). A case becomes moot if it is

“‘impossible for the court to grant any effectual relief whatever

to the prevailing party’” because “‘there is no reasonable

expectation that the wrong will be repeated[.]’” United States

v. Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009)

(quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)).

However, voluntary cessation of wrongful conduct does not moot a

case. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).

A challenge to legislation is mooted upon the law’s repeal unless

there is “evidence indicating that the challenged law likely will

be reenacted.” Nat’l Black Police Ass’n v. District of Columbia,

108 F.3d 346, 349 (D.C. Cir. 1997). In Aladdin’s Castle, 455

U.S. at 288, the Supreme Court considered whether a city
 - 13 -

ordinance was unconstitutionally vague. Before the court ruled

on the issue, the city repealed the ordinance and claimed that

the issue was moot. The court held that the city’s repeal of the

ordinance did not moot the issue because the city announced an

intention to reenact the provision if the district court judgment

holding the ordinance unconstitutionally vague were vacated. Id.

at 289 n.11.

Here, unlike in Aladdin’s Castle, the plaintiffs have not

produced any evidence that USPS intends to re-amend the

regulation at the termination of this litigation to again

prohibit signature gathering on Grace sidewalks. USPS’ changed

position during this litigation as to whether the unamended

regulation applied to Grace sidewalks (see Pls.’ Mem. at 6 n.2)

is not probative of any future intent to restore the previous

language. The plaintiffs merely speculate that USPS could amend

the provision at a later date, but such speculation is not

sufficient to warrant the injunctive relief that they seek.

See Nat’l Black Police Ass’n, 108 F.3d at 349-50 (concluding that

appeal was moot after finding no “evidence in the record” of

government’s intent to repeal new legislation that rendered

plaintiff’s legal challenge to old legislation unnecessary).

Plaintiffs’ challenge regarding Grace sidewalks, then, is moot.
 - 14 -

B. Kokinda sidewalks

1. Overbreadth

The plaintiffs further argue that there are a substantial

number of Kokinda sidewalks that also constitute public forums,

rendering the regulation facially invalid even if it does not

apply to Grace sidewalks. (Pls.’ Mem. at 6.) The Supreme Court

conducted a forum analysis regarding a non-Grace postal sidewalk

in United States v. Kokinda, 497 U.S. 720 (1990) (plurality

opinion). Kokinda involved a sidewalk outside a post office that

led “only from the parking area to the front door of the post

office.” Id. at 727. The plurality opinion in Kokinda, joined

by four Justices, held that the post office sidewalk did “not

have the characteristics of public sidewalks traditionally open

to expressive activity.” Id. Stating that “the location and

purpose of a publicly owned sidewalk is critical” in determining

whether it is a public forum, id. at 728-29, the plurality held

that the post office sidewalk was not a public forum because it

was “constructed solely to provide for the passage of individuals

engaged in postal business.” Id. at 727. Specifically, the

sidewalk existed “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.” Id. at 727-28 (contrasting the sidewalk

at issue with the “municipal sidewalk that runs parallel to the
 - 15 -

road in this case [and] is a public passageway”). However, “the

split nature of the decision in Kokinda provides no definitive

guidance on the forum status” of non-Grace postal sidewalks. IRI

III, 417 F.3d at 1313 (internal quotation marks omitted).

Other courts also have analyzed the forum status of walkways

at specific post office properties by considering their physical

characteristics and their purposes. See, e.g., Jacobsen v. U.S.

Postal Serv., 993 F.2d 649, 656 (9th Cir. 1993) (relying on

Kokinda’s plurality to conclude that “federal sidewalks obviously

separate from the municipal sidewalk and devoted to postal

customers are nonpublic” forums). In Longo v. U.S. Postal Serv.,

983 F.2d 9, 10-11 (2d Cir. 1992), the Second Circuit addressed a

challenge to § 232.1(h)(1)’s prohibition against campaigning on

postal property. Longo relied on Kokinda’s plurality opinion and

concluded that an “interior postal walkway . . . which was

constructed solely for the purpose of assisting patrons of the

post office to get from the parking lot to the front door of the

post office” was a nonpublic forum. Id. at 11. Monterey County

Democratic Central Comm. v. U.S. Postal Serv., 812 F.2d 1194,

1197 (9th Cir. 1987), found a walkway that was “separated from

the municipal sidewalks by the Post Office parking area” to be a

nonpublic forum because the walkway “services postal patrons

entering the building” and “is not a thoroughfare for passersby

intent on other errands.” United States v. Bjerke, 796 F.2d 643,
 - 16 -

648 (3d Cir. 1986), evaluated the forum status of postal walkways

which were separated from the street by a parking lot and an

exterior walkway. The court concluded that the areas near the

entrances were not public forums because they “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 . . . and not to provide a public

platform for political advocacy.” Id. at 649.

The most complete analyses of the forum status of postal

sidewalks have not merely considered the character and purpose of

the sidewalk in question, but also have evaluated the extent to

which expressive activity historically has taken place on the

property. These cases suggest that a specialized sidewalk

intended to facilitate postal business could be a public forum

if, historically, it had been the site for a sufficiently large

amount of expressive activity. See, e.g., Kokinda, 497 U.S. 737

(Kennedy, J., concurring) (stating that “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”); see also Henderson, 964 F.2d at

1182 (noting that while the government’s dedication of “property

to a use inconsistent with public assembly and debate . . .

precludes [its] classification as a public forum[,]” the

government cannot establish such inconsistency merely by
 - 17 -

declaring and enforcing restrictions on speech on a property that

has historically been a site for expressive activity). In Del

Gallo v. Parent, 557 F.3d 58, 71-72 (1st Cir. 2009), the First

Circuit considered whether a postal sidewalk that was separated

from the municipal sidewalk by a parking lot on one side and a

grass-covered area on another side constituted a public forum.

The court noted that the fact that the postal sidewalk touched

the municipal sidewalk was not enough to conclude that the two

walkways were indistinguishable because the two properties were

“clearly separate[.]” Id. at 71. Del Gallo concluded that the

walkway was a nonpublic forum because it “provide[d] customers

access to the entry” to the post office and there was no evidence

of past usage as a gathering place to promote “the free exchange

of ideas.” Id. at 71-72. United States v. Belsky, 799 F.2d

1485, 1489 (11th Cir. 1986) also evaluated both the character of

the sidewalk and whether there was a history of expressive

activity on the sidewalk. The court found that, unlike the

public sidewalks surrounding the building, “the ingress and

egress walkways to the post office buildings are a nonpublic

forum” because they “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.” Id.

Here, the regulation at issue no longer applies to

“sidewalks along the street frontage of postal property falling
 - 18 -

within the property lines of the Postal Service that are not

physically distinguishable from adjacent municipal or other

public sidewalks[.]” 39 C.F.R. § 232.1(a)(ii) (2010). Thus, the

sidewalks to which the regulation still applies –– which are by

definition physically distinct from “classical variety” sidewalks

–– are not subject to the presumption that they are public

forums. Cf. Henderson, 964 F.2d at 1182. USPS relies on the

declaration of Frederick J. Hintenach, Manager of USPS’s Customer

Services Operations, Delivery and Retail Department, who is

responsible for USPS standard operating policies and procedures,

to establish that postal sidewalks have a specialized purpose.

(Def.’s Renewed Mot. for Summ. J., Docket #67, Ex. A ¶ 3, Ex. B

¶¶ 1, 3.) Hintenach states that parking lots, driveways, and

postal owned walkways are intended to provide access to the post

office for people conducting postal business.9 (Id., Ex. B ¶ 12.)

At a minimum, therefore, a successful facial challenge to

the amended regulation requires the plaintiffs to demonstrate

that a substantial number of these sidewalks are public forums by

pointing to their past usage as gathering places to promote “the

9
The plaintiffs do not refute USPS’ claim that postal
sidewalks are intended to facilitate postal business. They
instead merely dispute the legal implication of this fact. (See
Pls.’ Mem. of P. & A. in Opp’n to Def.’s Renewed Mot. for Summ.
J. at 4 (“At the heart of the government’s argument is an
assumption that a sidewalk dedicated to some purpose cannot also
be a public forum. But this Circuit’s decisions . . . have
explicitly rejected that argument.”).)
 - 19 -

free exchange of ideas.” See Del Gallo, 557 F.3d at 71-72; IRI

III, 417 F.3d at 1314 (remanding for a determination of whether

the regulation abridges a substantial amount of speech and thus

is overbroad). USPS relies on the affidavit of Gregory Whiteman,

Manager of Marketing Research, who states that while the “survey

was not designed to be a statistically valid representation of

activities on postal premises on a nationwide basis” and the data

cannot be tested statistically, the results are “useful.”

(Def.’s Mem., Decl. of Gregory M. Whiteman ¶¶ 6, 24.) Because

the surveyed post offices do not provide a statistically valid

sample of post offices nationwide, it is impossible to

extrapolate from the data conclusions about the frequency of

expressive activity on the entire population of Kokinda postal

sidewalks.10

However, even if it were possible to draw statistically

valid conclusions from the parties’ survey, the data do not allow

for any meaningful conclusion to be made about the historical

regularity of expressive activity on Kokinda sidewalks. The

survey asked postal managers about expressive activity on the

sidewalks of the postal office that they currently manage and on

10
It is also impossible to draw any statistically valid
conclusions from the twelve exemplary post offices, which are not
representative of post offices nationwide. (See Pls.’ Mem. at 15
(acknowledging that “the ‘subject post offices’ were selected
precisely because plaintiffs and others had previously used their
sidewalks for petitioning activities”).)
 - 20 -

the sidewalks of each postal office that they had previously

managed. (Def.’s Mem., Ex. B., Postmaster Questionnaire.)

Although the survey asked for the dates that the managers served

at each postal facility, the managers did not provide the dates

on which expressive activity occurred, nor do the parties’

experts draw conclusions about the dates on which reported

expressive activity took place. These omissions prevent a

determination that any of the various properties has been a site

of expressive activity of sufficient historical regularity to be

considered a public forum. See Del Gallo, 557 F.3d at 72

(rejecting plaintiff’s argument that isolated examples of

political election campaigning on Kokinda sidewalk allowed it to

be considered a public forum). Although the plaintiffs argue

that the survey reveals that there has been a decrease in

expressive activity on postal sidewalks since the regulation’s

promulgation and implementation in 2000 (Pls.’ Mem. at 10-11

(“[O]f the 1,623 postal managers who responded to this question,

18.1% reported observing at least some decline in expressive

activity on postal sidewalks in that period, and 12.2% reported

observing a ‘significant’ decline.”)), the survey asked about

postal property sidewalks generally. Thus, the plaintiffs cannot

rule out the possibility that any decline in expressive activity
 - 21 -

took place largely –– or even solely –– on Grace sidewalks.11

Moreover, the plaintiffs’ expert did not conclude that there was

a causal relationship between implementing the regulation and the

decrease in expressive activity. He merely concluded that “a

substantial number of postal managers reported that they observed

a decline in the amount of expressive activity on their sidewalks

since 2000[.]”12 (Pls.’ Mem., Decl. of Joseph B. Kadane ¶ 4(e).)

Finally, the plaintiffs argue that “from a statistical

standpoint, the Kokinda sidewalks in question were in fact

indistinguishable from Grace sidewalks within the scope of the

11
With respect to the exemplary post offices, most of the
evidence the plaintiffs cite similarly fails to distinguish
between expressive activity that took place on Grace sidewalks
and expressive activity that took place on Kokinda sidewalks.
(See, e.g., Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot. for Summ
J., Docket #65, Ex. 34, Freeman Dewayne Lents Dep. at 31:4-9
(“Just a couple of weeks ago, we did have somebody that was
soliciting signatures . . . on the sidewalk[.]”); Ex. 35, Carol
Bechtel Dep. at 52:18-19 (“They were on the sidewalk in front of
the post office.”).) The one deposition the plaintiffs cite that
does distinguish between Grace and Kokinda sidewalks refers to
expressive activity that took place on a Grace sidewalk, which is
not relevant to determining the historical regularity of
expressive activity on Kokinda sidewalks. (See id., Ex. 36,
William C. Farrell Dep. at 23:21-22 (“Q: And where did you tell
them to go? A: To relocate to the south public sidewalk[.]”
(emphasis added)).)
12
Even if the plaintiffs’ assertion that “enforcement of
the regulation has resulted in an observed reduction in
expressive activity” (Pls.’ Mem. at 10) is correct, the data do
not reveal a baseline for comparison. Without knowing the
historical frequency of expressive activity, the significance of
the reduction cannot be determined.
 - 22 -

survey.”13 (Id. at 11-12 (emphasis omitted).) Even if the survey

results allowed for the conclusion that there is no statistically

significant difference between the observed frequency of

expressive activity on Grace and Kokinda sidewalks –– which the

results do not allow for since the samples are not necessarily

representative of the population of postal sidewalks –– this

argument would confuse the relevant inquiry. The plaintiffs

point to no authority for the proposition that if the frequency

of expressive activity on a particular type of property is

comparable to the frequency of expressive activity on a public

forum, the property in question must also be a public forum.

Rather, the frequency of expressive activity on Grace sidewalks

is immaterial to their status as public forums because they are

13
The plaintiffs draw this conclusion from the following
data concerning expressive activity observed on various postal
sidewalks:

Observed Sidewalk A Sidewalk B Sidewalk C
Frequency (Grace (Interior (Interior
sidewalks) “feeder” sidewalks
sidewalks) running
alongside the
postal
building[)]
Several times 1.4% 1.1% 1.3%
a month
About monthly 4.7% 5.9% 2.6%
Three to six 8.9% 5.9% 9.5%
times a year

(Pls.’ Mem. at 12.)
 - 23 -

physically indistinguishable from classical variety sidewalks.

See Henderson, 964 F.2d at 1182. Moreover, comparing the

frequency of expressive activity within the recent past on the

two types of sidewalks sheds little, if any, light on the forum

status of Kokinda sidewalks, since the relevant inquiry concerns

whether individuals have used those sidewalks historically for

expressive activity.14 See, e.g., Del Gallo, 557 F.3d at 71-72.

The plaintiffs have not demonstrated through their facial

challenge that there are significant numbers of Kokinda sidewalks

that have served historically as sites for a significant amount

of expressive activity. Therefore, in light of the specialized

physical characteristics and purpose of these sidewalks, the

plaintiffs have not shown that a substantial number of Kokinda

sidewalks are public forums. Accordingly, they have not met the

steep burden required to show that the regulation is overbroad

and should be declared facially invalid.

14
While the plaintiffs point to other anecdotal evidence in
the record to argue that “[p]ost office sidewalks have long
served as a principal public forum for all kinds of expressive
activities” (Pls.’ Mem. at 7-10), none of this evidence
distinguishes between Grace and Kokinda sidewalks. Because the
plaintiffs cannot demonstrate with reasonable certainty that
individuals have not confined their expressive activities on
postal properties exclusively or even largely to Grace sidewalks,
this evidence is insufficient to demonstrate that Kokinda
sidewalks are public forums.
 - 24 -

2. Reasonableness

The plaintiffs argue on remand that the amended regulation

is unreasonable because it permits the solicitation but prohibits

the collection of signatures on postal property, and because 39

C.F.R. § 232.1(e), a separate provision of the regulation,

prohibits disruptive activity that would interfere with postal

customers entering or leaving the property. (Pls.’ Mem. at 29-

30.) “[T]he state may reserve [a nonpublic] forum for its

intended purposes, communicative or otherwise, as long as the

regulation on speech is reasonable and not an effort to suppress

expression merely because public officials oppose the speaker’s

view.” Perry Educ. Ass’n, 460 U.S. at 46. “The reasonableness

of the Government’s restriction of access to a nonpublic forum

must be assessed in the light of the purpose of the forum and all

surrounding circumstances.” Cornelius, 473 U.S. at 809. “A

regulation is reasonable ‘when it is consistent with the

[government’s] legitimate interest in preserv[ing] the property

. . . for the use to which it is lawfully dedicated.’” IRI I,

116 F. Supp. 2d at 73 (quoting Int’l Soc. for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 688 (1992) (O’Connor,

J., concurring) (alterations in original)). The unamended

regulation at issue here previously was found to be reasonable,

such that it “would withstand the minimal level of scrutiny

applicable to regulations in a nonpublic forum[,]” since it was
 - 25 -

“consistent with USPS’s need to preserve post office property for

post office business.” Id. at 75.

The court of appeals held that the unamended regulation’s

apparent ban on “pure solicitation –– in the sense of asking

postal patrons to sign petitions –– even if the signatures

themselves are to be collected off postal premises” was

unreasonable but that construing the regulation not to prohibit

“communications that promote the signing of petitions, polls, and

surveys somewhere other than on Postal Service premises” would

“cure the problem[.]” IRI III, 417 F.3d at 1314-17. USPS

formalized this limiting construction –– designed by the court of

appeals for the very purpose of saving the regulation from

unreasonableness –– in the amended regulation, which now

prohibits “collecting signatures” but not soliciting signatures.

39 C.F.R. § 232.1(h)(1) (2010). The amended regulation’s shift

from regulating soliciting signatures to regulating collecting

signatures therefore saves the regulation from remaining

unreasonable.

Moreover, § 232.1(e) does not render the signature

collecting prohibition in § 232.1(h)(1) unreasonable. It is

reasonable for USPS to adopt a regulation that attempts to

prevent disruption before it occurs. See IRI I, 116 F. Supp. 2d

at 75 (stating that “USPS need not show actual disruption” and

may instead “show merely the reasonable expectation of
 - 26 -

disruption” to restrict access to a nonpublic forum). Section

232.1(e) prohibits disruptive behavior on postal property, but it

is not a perfect substitute for § 232.1(h)(1), which provides a

mechanism for limiting disruption before it occurs.

Additionally, because USPS is regulating speech in a

nonpublic forum, it does not have to demonstrate that the

regulation is narrowly tailored to the government interest it

seeks to achieve. Lee, 505 U.S. at 683 (noting that the

reasonableness of a restriction on speech in a nonpublic forum is

not assessed in relation to other possible restrictions, as “‘it

need not be the most reasonable or the only reasonable

limitation’” (quoting Kokinda, 497 U.S. at 730 (plurality

opinion))). That removing a disruptive individual from postal

property might be a more narrowly tailored means of achieving the

government interest in preventing disruptions on postal property

has no bearing on whether the prohibition on signature collecting

on postal property is a reasonable regulation of speech in

nonpublic forums. With regard to Kokinda sidewalks, the

plaintiffs have provided no basis for disturbing the previous

conclusion that Ҥ 232.1(h)(1) is a reasonable effort by the

government to manage its property in pursuit of its business.”

IRI I, 116 F. Supp. 2d at 75.
 - 27 -

II. VAGUENESS

The plaintiffs argue that the amended regulation’s language

limiting its application to Kokinda sidewalks is vague in three

respects: 1) “it provides no substance to the phrase ‘physically

distinguishable,’ leaving it entirely to the discretion of the

enforcing official[,]” 2) “it is unclear what sidewalks qualify

as ‘along the frontage[,]’” and 3) it is unclear whether the

exception “can encompass any non-perimeter sidewalks[.]” (Pls.’

Mem. at 31.) “It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions are not

clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108

(1972). A lack of precision in defining prohibited conduct would

give enforcing officials “an impermissibly wide discretionary

range in which to determine who is in violation.” Cmty. for

Creative Non-Violence v. Turner, 893 F.2d 1387, 1395 (D.C. Cir.

1990). As a result, a vague statute that seeks to regulate

activity protected by the First Amendment may unnecessarily chill

the exercise of those activities. Gooding v. Wilson, 405 U.S.

518, 521 (noting that “persons whose expression is

constitutionally protected may well refrain from exercising their

rights for fear of criminal sanctions provided by a statute

susceptible of application to protected expression” and that the

social value of constitutionally protected expression justifies

allowing plaintiffs to challenge these statutes for vagueness
 - 28 -

even if they cannot demonstrate that the statute at issue

regulates their own conduct). However, “perfect clarity and

precise guidance have never been required even of regulations

that restrict expressive activity.” Ward v. Rock Against Racism,

491 U.S. 781, 794 (1989).

Here, the language about which the plaintiffs complain is

not unconstitutionally vague when considered in the context of

the regulation’s entire provision. It may be that the precise

meanings of the phrases “physically distinguishable,” “along the

street frontage,” and “adjacent to such sidewalks,” in isolation,

are not apparent. However, these provisions are part of an

actual sentence, and each of these three phrases serves to inform

and provide context for the others: § 232.1(h)(1) does not apply

to “sidewalks along the street frontage of postal property

falling within the property lines of the Postal Service that are

not physically distinguishable from adjacent municipal or other

public sidewalks, and any paved areas adjacent to such sidewalks

that are not physically distinguishable from such sidewalks.” 39

C.F.R. § 232.1(a)(ii) (2010). The plaintiffs argue that a crack,

seam, or change in color in a Grace sidewalk could provide a

basis for an enforcing official to not apply the exclusion to

that sidewalk. But such minor physical anomalies are common to

sidewalks generally and cannot alone serve to distinguish a

Grace sidewalk from its “adjacent municipal [sidewalks] or other
 - 29 -

public sidewalks[.]” Id. By contrast, interior postal sidewalks

and postal sidewalks perpendicular to adjacent municipal

sidewalks, for example, are physically distinguishable from both

adjacent municipal sidewalks and other public sidewalks because

of their position relative to the perimeter of postal property.

Moreover, the phrase “paved area” cannot provide a basis for an

enforcing official to apply the exclusion to a Kokinda sidewalk

that runs perpendicular to a perimeter sidewalk, as the

plaintiffs argue, because the exclusion applies to sidewalks

“along” the frontage, not perpendicular to it. The regulation

therefore is not unconstitutionally vague when read in context.

See Grayned, 408 U.S. at 112 (noting that the statute, “written

specifically for [a particular] context” was not

unconstitutionally vague because it gave fair notice of the

prohibited activities in that context).

CONCLUSION

The plaintiffs have not shown a need to enjoin USPS from re-

amending the regulation to apply to Grace sidewalks. Nor have

the plaintiffs carried their burden to show that the amended

regulation is overbroad, as they have not demonstrated that a

substantial number of Kokinda sidewalks are public forums.

Because no material facts are in dispute and the regulation is

reasonable and not void for vagueness, the defendant’s motion

[142] for summary judgment will be granted, and the plaintiff’s
 - 30 -

motion [143] for summary judgment will be denied. An appropriate

Order accompanies this Memorandum Opinion.

SIGNED this 8th day of September, 2010.

__________/s/_______________
RICHARD W. ROBERTS
United States District Judge