No. 95-2891
Families Achieving Independence *
and Respect, Sheryl Walker, *
Vicki Stippel, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Nebraska Department of Social *
Services, Mary Dean Harvey, *
Ann Hogan, Daryl Wusk, Suzy *
Skinner, *
*
Appellees. *
Submitted: February 12, 1996
Filed: July 31, 1996
Before MAGILL, HEANEY, and MURPHY, Circuit Judges.
HEANEY, Circuit Judge.
A grass-roots, welfare rights organization brought this action under
42 U.S.C. §§ 1983 and 1988 to gain access to the lobby of a state-operated,
welfare office for the purpose of distributing written materials to and
discussing welfare policy issues with welfare recipients. The district
court held that the state's exclusion of the group did not violate the
First or Fourteenth Amendment. We reverse. The policy employed to decide
which persons are permitted access to the lobby is vague and subject to
arbitrary enforcement. For this reason, the group's exclusion violates the
First Amendment.
I. BACKGROUND
The facts of this case are essentially undisputed. After a
consolidated bench trial and hearing on a request for preliminary
injunction, the district court made detailed findings of fact pursuant to
Federal Rule of Civil Procedure 52(a). Families Achieving Independence &
Respect v. Nebraska Dep't of Social Servs. ("FAIR"), 890 F. Supp 860 (D.
Neb. 1995). We summarize below only those facts relevant to our decision.
Families Achieving Independence and Respect (FAIR) is a loosely-
organized group of past and current welfare recipients providing
educational support for low-income persons. Among its goals, FAIR seeks
"to more fully inform the public discussion and debate on the 'welfare
system' and 'welfare reform.'" FAIR, 890 F. Supp. at 862 (quoting Pls.'
1
Ex. 3, Funding Proposal at 1).
1
FAIR has no membership list per se and is not incorporated.
The organization's two staff members, Sheryl Walker and Vicki
Stippel, are the other named appellants in this case. Each is a
welfare recipient who, for her work on behalf of FAIR, receives
"scholarships" in lieu of a salary. FAIR, 890 F. Supp. at 863.
FAIR finances its activities under a grant from a charitable
organization. The director of the Nebraska Center for Legal
Services (a special project of the Legal Aid Society, Inc. of
Omaha) oversees the grant and advises FAIR with respect to the
conditions of the grant and long-term organizational strategy. The
primary limitation on the funds is that the money may not be used
for political purposes. As a result, FAIR does not engage in
activities related to partisan politics or in the direct lobbying
of elected officials. (Tr. 42:4-17.)
Nonetheless, the dissent attempts to present FAIR as a highly
political organization both registered as a lobbyist with the state
and "allied . . . with various organizations, including the
Nebraska Women's Political Network, the National Organization of
Women, and the Nebraska Democratic Women . . . ." Dissenting Op.,
infra at 2. As found by the district court, FAIR was not a
registered lobbyist when this case went to trial. FAIR, 890 F.
Supp. at 862. FAIR briefly registered with the State of Nebraska
as a lobbyist out of "an excess of caution," (Tr. 39:13-14), and
soon withdrew its application for registration after determining,
with the assistance of the staff of the Accountability and
-2-
2
The Nebraska Department of Social Services (NDSS) is a state agency
that provides assistance to low-income individuals and families. NDSS
maintains both a local office and a central office in Lincoln, Nebraska.
Daryl Wusk is the administrator of the local NDSS office in Lincoln. The
local NDSS office provides a broad range of services to welfare recipients.
As Wusk explained, "Our agency is not only involved in [providing]
maintenance . . . like food stamps and AFDC and Medicaid, but we also are
a complete service office that has child welfare and adult protective
services and the whole menagerie, if you will, of Social Services programs
. . . ." Id. at 863 (quoting Tr. 132:13-23).
The local office of NDSS is located on the second floor of a
commercial building owned and managed by a private company. The building
management will not allow FAIR or any other group to distribute materials
in the common areas of the building. Within the local NDSS office is a
large, enclosed waiting and reception area (hereinafter "lobby"). The
lobby is a high-traffic area of the local NDSS office. Id. It is
especially busy during the first five days of the month when the agency
issues food stamps to over 1,920 households "over the counter" in the
reception area. Id. Throughout the month, the lobby is used by people
waiting to receive food stamps as well as by clients waiting to meet with
NDSS personnel in adjoining interview rooms.
NDSS has no agency policy for dealing with requests from outside
groups to distribute information or otherwise engage in
Disclosure Commission, that FAIR was not a lobbyist (Tr. 39:19-
40:22). Moreover, the extent of FAIR's affiliation with political
organizations was its co-sponsorship of a rally at the state
capital. The rally was also sponsored by various day care
providers; those day care providers certainly were not transformed
into political groups by their mere association with the rally. In
any event, our decision turns on the policy used by the welfare
office to distinguish between organizations appealing to use the
facilities, not on the exact nature of FAIR's political leanings.
-3-
3
speech activity on NDSS property. Wusk has developed an unwritten policy
to handle such requests at the local NDSS office. According to Wusk, he
declines to open the lobby "up for the world"; rather, he tries "to
'minimize the numbers of groups' allowed access 'as much as possible.'"
Id. at 865 (quoting Tr. 120:21-22, 150:15-151:3). Wusk explained that
restrictions are necessary to prevent administrative difficulties, such as
congestion, and to ensure that his clients are treated with dignity and not
forced to encounter individuals promoting a particular political agenda.
Id. at 866. Specifically, Wusk's policy consists of two parts: (1) only
groups that provide a "direct benefit" associated with the "basic needs"
of welfare recipients are allowed access to the lobby, and (2) "advocacy
groups" are never allowed access regardless of the message or position
advocated by the group. Id.
Over the years, Wusk has received numerous requests from groups
seeking access to the lobby. Wusk has granted the requests of four groups:
(1) volunteers who assisted welfare recipients in the preparation of state
and federal income tax returns, (2) representatives of the Head Start
Program who registered children of welfare recipients for the preschool
program, (3) representatives of a food and nutrition program who
distributed literature and recipes, and (4) persons who registered welfare
recipients for GED and English-as-a-second-language courses at a local
community college.2 Wusk specifically turned down requests
2
Stippel testified that, in addition to the listed groups, she
had seen Girl Scouts using the lobby of the local NDSS office in
the past. (Tr. 80:23-81:7.) The district court, however, credited
Wusk's testimony whereby he "specifically denied allowing the Girl
Scouts access to the [lobby] to hand out materials." 890 F. Supp.
at 866, n.4. Wusk's actual testimony illustrates not only his poor
memory of this matter, but also some of the problems inherent in
enforcing a policy like Wusk's:
A. [Wusk:] We have probably had Girl Scouts on
the premises, but I don't believe that they--that I
recall ever set up a table to sign up and do those
kinds of things. We have groups come in once in a
while and bring
us or come in to see the office and do little mini tours and
things, but they may have come that way, but I don't remember that
-4-
4
for access to the lobby by groups and institutions including a Wesleyan
University social work class, the Lincoln School of Commerce, "Mad Dads"
(a church-affiliated group designed to provide children with constructive
activities), "Journey" (a Native American health rights organization), a
"Right-To-Life" group, and various University of Nebraska research groups.
Id.
To determine whether an entity making a request to use the lobby is
an advocacy group--and thus excludable--Wusk explained that either a group
would self-identify as an advocacy group or he would review the group's
literature to make a subjective determination about the nature of the
group's work. (Tr. 137:1-144:6.) Despite her best efforts, counsel for
FAIR could not pin Wusk down on clear definitions of either "advocacy
group" or a welfare recipient's "basic needs." With respect to the former,
Wusk testified that an advocacy group is one that "promotes an issue."
(Tr. 137:21-24.) As to welfare clients' basic needs, Wusk
they came in and did a table.
Q. Is it possible that somebody could have set up
[a table] in the office area at sometime without
your knowledge?
A. That is possible.
Q. Had you known that the Girl Scouts wanted to
come on the premises and access clients for the
purpose of soliciting membership, would you have
allowed that to happen?
A. No.
(Tr. 124:16-125:4.)
Although the district court might have been more accurate had it
characterized Wusk as having denied that he remembered giving the
group access, we do not disturb the court's factual finding that
the Girl Scouts were never permitted to distribute materials or
solicit membership in the lobby.
-5-
5
explained that food, clothing, and shelter certainly qualify; in the same
sentence, however, he asserted that even the Lincoln Children's Museum
"addresses a psychological need" consistent with his agency's commitment
to "deal with child welfare and trying to promote some healthy families."
(Tr. 141:9-17.) Wusk also stated that he would not permit the Red Cross
to use the lobby to distribute information on CPR because his "customers
can live long and healthy [lives] without CPR training." (Tr. 135:22-
136:14.)
In January 1995, Stippel telephoned Suzy Skinner, Wusk's assistant,
and requested permission to have one or two FAIR members sit at a table in
the lobby during the first three days of February. FAIR representatives
wanted to talk to welfare recipients and distribute materials. The written
materials included: (1) a brochure that explains what FAIR is, the group's
goals, and the policy issues FAIR seeks to address; (2) a flier announcing
an upcoming Valentine's Day rally at the state capitol to "Stop the War on
Poor Children" co-sponsored by FAIR; and (3) a postcard designed for
welfare recipients to send to their elected representatives in the names
of their children urging support for measures to assist families in getting
off welfare. After reviewing the materials, Skinner indicated that she did
not think that there would be any problem but that she would have to
discuss the matter with Wusk. 890 F. Supp. at 864-65. Wusk then reviewed
the materials and denied FAIR's request to use the lobby. Wusk stated that
FAIR did not provide a direct benefit to NDSS clients. Id. at 865.
On February 1, 1995, despite Wusk's decision, representatives from
FAIR came to the lobby to talk to welfare recipients and to distribute
information. Skinner again informed the group that it was not permitted
to use the lobby. During this conversation, Skinner asked whether FAIR's
announcement about the upcoming rally could be placed on the bulletin board
in the lobby. Id. Wusk, through Skinner, subsequently informed FAIR it
would not be allowed
-6-
6
to display the announcement on the bulletin board because it did not
provide a direct benefit to welfare recipients. Id. After being informed
that they would not be allowed to remain in the lobby, all members of the
group left voluntarily without causing a disturbance.
FAIR brought this civil rights action pursuant to 42 U.S.C. §§ 1983
and 1988 alleging that the defendants violated their First Amendment rights
to free speech and free association and their Fourteenth Amendment right
to equal protection by denying them access to the lobby where other groups
had been allowed to engage in similar activity. After a hearing, the
district court decided in favor of the defendants. The court held that the
lobby was not a public forum. Thus, FAIR's expressive activity could be
prohibited in the lobby without violating the First Amendment as long as
the regulation was reasonable and not an effort to suppress expression
because of opposition to the speaker's views. The court concluded that the
NDSS prohibition was reasonable because it sought to maintain the lobby as
a place where social services are dispensed as opposed to a place for
discussion and debate on public policy issues. FAIR appeals. We reverse.
II. DISCUSSION
Appellants do not challenge the district court's findings of fact.
Rather, FAIR challenges the district court's legal conclusion that FAIR's
exclusion from the welfare office lobby was constitutional. Although we
review the district court's factual findings only for clear error, Fed. R.
Civ. P. 52(a), where the constitutional issues present mixed questions of
law and fact, our review is de novo. Gerritsen v. City of Los Angeles, 994
F.2d 570, 574 (9th Cir.) (noting that review of First Amendment questions
is de novo because they present mixed questions of law and fact requiring
the appellate court to apply principles of First
-7-
7
Amendment jurisprudence to the specific facts of the case), cert. denied,
510 U.S. 915 (1993).
In holding that NDSS's exclusion of FAIR from the welfare office
lobby was constitutional, the district court relied heavily on its
determination that the welfare office lobby was not a public forum. FAIR,
890 F. Supp at 871. Having made that determination, the court disposed of
the remaining questions--whether the prohibition was reasonable and not an
effort to suppress the speakers' activity due to disagreement with their
views--in relatively short order. In this case, however, the
constitutionality of FAIR's exclusion from the welfare office turns not on
the labeling of the forum, but on an analysis of the policy. We hold that
the policy on its face violates the First Amendment under even the least-
exacting reasonableness standard applicable to nonpublic forums. See Perry
Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983)
(delineating three categories of public property and each category's
corresponding standard of review). The welfare office policy is
unreasonable because it permits state officials to apply impermissibly
vague criteria to distinguish between persons or groups seeking to engage
in expressive activity in the lobby. See NAACP Legal Defense & Educ.
Fund,, 504 F. Supp. 1365, 1367 (D. D.C. 1981) (holding that a requirement
that a charity provide "direct services" is too vague a basis on which to
distinguish between groups for participation in a federally-sponsored,
fund-raising campaign). Therefore, we reverse the district court without
engaging in an exhaustive forum analysis and leave the question of whether
the welfare office lobby is a public forum for another day. See Airport
Comm'rs v. Jews For Jesus, 482 U.S. 569, 573-74 (1987) (holding it
unnecessary to reach public forum question where regulation prohibiting all
First Amendment activities in airport was facially unconstitutional under
overbreadth doctrine); Lebron v. National R.R. Passenger Corp. (AMTRAK),
74 F.3d 371, 372 (2d Cir. 1996) (C.J. Newman, dissenting) ("[N]o matter
what the scope of the forum, a governmental entity
-8-
8
violates the First Amendment when it bars display of political messages
pursuant to a 'policy' that [is] vague, unwritten, unclear to those who
must administer it, and inconsistently applied."), denying reh'g and
amending, Lebron v. AMTRAK, 69 F.3d 650 (2d Cir. 1995).
The essential, interrelated terms of the policy--"direct benefit,"
"basic needs," and "advocacy group"--are neither self-defining nor defined
by the policy. On the contrary, the terms are elastic. As demonstrated
by Wusk's own testimony, it is difficult to define the terms and nearly
impossible to apply them consistently. We disagree with the dissent's
contention that Wusk's policy has been consistently interpreted and
applied, Dissenting Op., infra at 7. For example, we see no basis for a
bright-line distinction between Head Start--a group that provides preschool
education and socialization opportunities for poor children--and FAIR--a
group that educates welfare recipients and gives them the tools to
understand and participate in the legislative process as it pertains to
welfare reform. Both provide a benefit to welfare recipients, and both are
motivated by a desire to improve the basic living conditions of the least
privileged in our society. Moreover, both are arguably advocacy groups in
that both "promote issues." We discuss application of the policy to other
groups not to imply that Wusk committed any particular error, but instead
to highlight that the policy necessarily requires arbitrary line drawing
and yields inconsistent results.
If a governmental policy restricts protected expressive conduct, it
will withstand constitutional scrutiny only if it is clear and consistently
applied. NAACP Legal Defense & Educ. Fund v. Campbell, 504 F. Supp. at
1367. Two particular policies underlie this vagueness doctrine: (1) the
need for notice informing those subject to a policy of its meaning, and (2)
providing officials with explicit guidelines to avoid arbitrary and
discriminatory enforcement. Id. The state policy fails on both
-9-
9
counts. The policy fails to give adequate notice and confers a virtually
unrestrained power on authorities to decide whether a group provides a
benefit to welfare recipients. Cf. Airport Comm'rs v. Jews For Jesus, 482
U.S. at 576 ("The opportunity for abuse, especially where a statute has
received a virtually open-ended interpretation, is self-evident.")
(citations omitted).
The dangers of a vague standard are all the more heightened where,
as here, a group seeks to engage in core expressive conduct protected by
the First Amendment. The Supreme Court recently observed that "handing out
leaflets in the advocacy of a politically controversial viewpoint [] is the
essence of First Amendment expression." McIntyre v. Ohio Elections Comm'n,
U.S. , 115 S. Ct. 1511, 1519 (1995); see also Albany Welfare Rights
Org. v. Wyman, 493 F.2d 1319 (2nd Cir.), cert. denied, 419 U.S. 838 (1974)
(holding that a blanket denial to welfare rights organization requesting
to hand out leaflets at welfare office violated First Amendment). FAIR is
a grass-roots organization designed to empower welfare recipients and
facilitate their involvement in welfare reform. To that end, FAIR wants
to provide information to welfare recipients about the current welfare-
reform debate and about the possible impacts of proposed legislative
changes. It is well established that:
[d]iscussion of public issues . . . [is] integral to the
operation of the system of government established by our
Constitution. The First Amendment affords the broadest
protection to such political expression in order "to
assure [the] unfettered interchange of ideas for the
bringing about of political and social changes desired by
the people." Roth v. United States, 354 U.S. 476, 484
(1957). Although the First Amendment protections are not
confined to "the exposition of ideas," Winters v. New
York, 333 U.S. 507, 510 (1948), "there is practically
universal agreement that a major purpose of the Amendment
was to protect the free discussion to governmental
affairs . . . ." Mills v. Alabama, 384 U.S. 214, 218
(1966). This no more than reflects our "profound
national commitment to the principle that debate on
-10-
10
public issues should be uninhibited, robust, and wide-
open." New York Times v. Sullivan, 376 U.S. 254 (1964).
McIntyre, 115 S. Ct. at 1518-19. The vagueness of the state's policy is
particularly problematic in view of the fact that the policy was used to
prevent FAIR from engaging in core speech.
By rejecting the approach used by the local NDSS office to control
access to its lobby, we do not preclude all restrictions on the use of its
welfare office lobby. The government need not permit all forms of speech
on property that it owns or controls. Certainly the agency has a right,
as well as a duty, to protect its clients from fraud, harassment, and undue
annoyance. Safety and over-crowding also present legitimate administrative
concerns. Although the policy under consideration may be well-intended,
its standards are vague and it creates a substantial potential for
arbitrary and discriminatory application. It follows that the policy
cannot withstand First Amendment scrutiny. Therefore, we reverse the
decision of the district court.
MAGILL, Circuit Judge, dissenting.
I respectfully dissent. Because I conclude that the Nebraska
Department of Social Services' Lancaster County local office's (NDSS)
policy on expressive activities by outside groups is not unconstitutionally
vague, and that the district court correctly determined that (1) the NDSS
office is not a public forum; (2) the NDSS's regulation of expressive
conduct in the office is reasonable; and (3) the NDSS prohibition on
Families Achieving Independence and Respect's (FAIR) efforts to advocate
their position to a captive audience was not motivated by opposition to
their viewpoint, I would affirm the district court.
-11-
11
I.
During the first five days of each month, the NDSS office in Lincoln,
Nebraska, is "especially busy because food stamps are issued to 1,920
households 'over the counter.'" FAIR v. Nebraska Dep't of Social Servs.,
890 F. Supp. 860, 864 (D. Neb. 1995). To limit congestion in such a high-
traffic area and to "'treat [welfare recipients] with dignity' and not
force NDSS customers to encounter individuals promoting a particular
political point of view in order to obtain the necessities of life," id.
at 866 (quoting Trial Tr. at 119-20), Daryl Wusk, the administrator of the
NDSS office, created a "general policy of keeping the waiting/reception
area [of the NDSS office] closed." Id. at 865. This policy provided that
(a) "advocacy groups," regardless of whether Wusk agreed
or disagreed with the group's message, were never allowed
access to the waiting/reception area for advocacy
purposes; and (b) only groups that provided a "direct
benefit" associated with the "basic needs of our
customers" were allowed access to the waiting/reception
area.
Id. at 865-66 (citations to record omitted; note omitted). A similar
policy applied to the bulletin boards located in the office. See id. at
866-67.
The district court found that, "[o]ver the years, only four groups
had been allowed access to the waiting/reception area in order to hand out
materials to welfare recipients." Id. at 866. These groups provided
nutrition information, registration in GED and ESL adult education courses,
registration in Head Start prekindergarten classes, and volunteer
assistance with state and federal tax forms.3 By contrast, other groups,
such as social work
3
The bulletin boards contained information regarding
nutrition, health, housing, Head Start registration, volunteer tax
assistance, a "parent's center" at the YWCA, employment and
employment training opportunities, free stoves from a rent-to-own
company, free
admissions or family memberships to the Lincoln Children's Museum,
and enrollment in "Tele-Care," a service offered by the Lincoln
General Hospital to ensure participants' well-being on a daily
basis. See Def. Ex. 1.
classes, right-to-life groups, and "Mad Dads" (a group which Wusk belonged
to and otherwise supported) were consistently denied access to the office.
In January 1995, FAIR sought access to the office to advertise an
upcoming rally at the Nebraska state capitol. FAIR, which had been a
registered lobbyist in the State of Nebraska and had allied itself with
various organizations, including the Nebraska Women's Political Network,
the National Organization of Women, and the Nebraska Democratic Women, was
sponsoring the rally to "show strong, unified, grassroots opposition to the
destruction of our nation's social safety net." Pl. Ex. 5. FAIR was
denied access to the NDSS office's lobby and bulletin boards because it was
an advocacy group which did not offer a direct benefit associated with a
basic need of welfare recipients.
FAIR brought an initial action in the district court for temporary
injunctive relief, which was denied, and the instant action, seeking
damages and permanent injunctive relief. Following a hearing, the district
court denied relief. In its thoughtful and well-written memorandum
opinion, the district court determined that, under several competing
Supreme Court tests, the NDSS office was not a public forum. See FAIR, 890
F. Supp. at 871. Because of this crucial determination, the policy
limiting expressive conduct in the office could be upheld if it was
"reasonable," see id. at 874, and if the policy was not an effort to
discriminate on the basis of the speaker's viewpoint, see id. at 877. The
district court, finding that "neither the unwritten nature of the policy
nor the substance of the policy itself afforded Wusk or anyone else overly
broad discretion in violation of the First Amendment," id.
-13-
13
at 875 n.14, held that neither the plaintiffs' First Amendment nor equal
protection rights had been violated. Id. at 877-78.
II.
In this case, the district court served as the finder of fact, and
this Court reviews these findings only for clear error. See Fed. R. Civ.
P. 52(a). Throughout its opinion, however, the majority second-guesses the
facts found by the district court, and attempts to draw its own factual
conclusions from the record in this case without initially finding clear
error. For example, in describing Head Start, one of the organizations
allowed to use the NDSS office, the Majority declares:
we see no basis for a bright-line distinction between
Head Start--a group that provides preschool education and
socialization opportunities for poor children--and FAIR--
a group that educates welfare recipients and gives them
the tools to understand and participate in the
legislative process as it pertains to welfare reform.
Both provide a benefit to welfare recipients, and both
are motivated by a desire to improve the basic living
conditions of the least privileged in our society.
Moreover, both are arguably advocacy groups in that both
"promote issues."
Maj. Op. at 9. I am frankly confused by the majority's inability to
distinguish between a political advocacy organization and a preschool
class: the first attempts to secure political goals by campaigning and
outreach efforts, while the other teaches infants their ABCs. The majority
assumes that FAIR provides a benefit to welfare recipients, but the
district court did not make this finding of fact. Beyond a witness's
assertion at trial that FAIR's efforts were "educational," see Trial Tr.
at 60 (Testimony of Walker) ("[i]f we did not notify them [welfare
recipients] of the rally, they may not know about it"), I can find nothing
in the record to support such a conclusion. The majority assigns similar
motivations to Head Start and FAIR, yet this description of Head
-14-
14
Start's goals is found nowhere in the record; I must assume that the
majority is taking judicial notice (from what source, I am uncertain) of
facts which were not in evidence at the trial. The district court, in
considering FAIR's comparison of itself and groups allowed access to the
NDSS office, found such a comparison "factually unfounded," FAIR, 890 F.
Supp. at 872. The majority ignores this finding and "arguably" concludes
that Head Start is, like FAIR, an advocacy group. There is not a scintilla
of evidence in the record to support this conclusion, however, and I
accordingly reject it.
In addition, the majority states that Wusk's analysis of whether an
organization was an advocacy group was a "subjective determination." Maj.
Op. at 5. Whether Wusk based his decisions on subjective or objective
criteria is a question of fact, and the finding made by the majority was
not made by the district court. In addition to usurping the fact-finding
function of the district court, the majority makes this assertion without
evidentiary support. Wusk testified that his determination was usually
based on a group's self-identification as an advocacy group, see Trial Tr.
at 137, which is clearly an objective criteria. When Wusk attempted to
provide an objective definition of "advocacy," FAIR's attorney interrupted
him, and stated, "I don't care about other people. I want to know how you
define advocacy group." Id.
III.
The majority, declining to address whether the lobby of the NDSS
office is, or is not, a public forum, declares the office's unwritten
policy to be vague, and therefore facially unconstitutional, because the
"essential, interrelated terms of the policy--'direct benefit,' 'basic
needs,' and 'advocacy group'--are
-15-
15
neither self-defining nor defined by the policy." Maj. Op. at 9. See also
4
id. (describing these terms as "elastic"). I disagree.
While the NDSS office's policy is unwritten, "[t]he fact that a
policy is not committed to writing does not of itself constitute a First
Amendment violation," Lebron v. National R.R. Passenger Corp. (AMTRAK), 69
F.3d 650, 658 (2d Cir. 1995), opinion amended on denial of reh'g, Lebron
II, 74 F.3d at 371, so long as the policy is made explicit by "'well-
established practice.'" Id. (quoting City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 770 (1988)). As noted by the district court,
there was little or no practical reason for Wusk (or the
other defendants) to write a regulation since the
regulation was clear and simple: the forum was generally
closed except to welfare recipients. . . . [T]o the
extent that the policy contained an exception for outside
groups, the exception was quite limited, and it too was
clear and simple: only groups that provided a "direct
benefit" associated with the "basic needs of our
customers" were allowed access to the forum.
4
In concluding that the policy in this case is vague, the
majority relied on the dissenting opinion in Lebron v. National
R.R. Passenger Corp. (AMTRAK), 74 F.3d 371, 372-73 (2d Cir. 1995)
(Lebron II) (Newman, C.J., dissenting), cert. denied, 116 S. Ct.
1675 (1996), which argued that:
no matter what the scope of the forum, a
governmental entity violates the First Amendment
when it bars display of political messages pursuant
to a 'policy' that has been found by a fact-finder,
with abundant evidentiary support, to be vague,
unwritten, undisseminated, unclear to those who
must administer it, and inconsistently applied.
(emphasis added). I note that, in this case, no finder of facts
has made these findings, with the sole exception that the policy
was unwritten. Indeed, the district court rejected FAIR's argument
that the policy was ambiguous, see FAIR, 890 F. Supp. at 875 n.14,
and found instead that the policy "was clear and simple." Id. See
also id. at 866 (describing only consistent applications of the
policy).
-16-
16
FAIR, 890 F. Supp. at 875 n.14.
We have held that, "[t]o survive a vagueness challenge, a statute [or
policy] must give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited and provide explicit standards for
those who apply the statute." United States v. Dinwiddie, 76 F.3d 913, 924
(8th Cir. 1996) (quoting Video Software Dealers Ass'n v. Webster, 968 F.2d
684, 689 (8th Cir. 1992)). In examining the terms of a rule for vagueness,
the Supreme Court has noted that
there are limitations in the English language with
respect to being both specific and manageably brief, and
it seems to us that although the prohibitions [here] may
not satisfy those intent on finding fault at any cost,
they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the
public interest.
CSC v. Letter Carriers, 413 U.S. 548, 578-79 (1973) (upholding restrictions
on federal employees' political activities). See also Cornerstone Bible
Church v. City of Hastings, 948 F.2d 464, 473-74 (8th Cir. 1991) (rejecting
argument that ordinance was impermissibly vague for failing to define
"church," "private club," and "economic activity"); cf. Tindle v. Caudell,
56 F.3d 966, 973 (8th Cir. 1995) ("the ability to conceive of hypothetical
problematic applications does not render the rules susceptible to an over-
breadth challenge") (noting that rules which did "not precisely define what
would constitute impermissible conduct" were nevertheless not vague because
"they give adequate notice that high standards of conduct are required").
Under these principles of common sense interpretation and well-
established practice, the NDSS office's policy meets the standard set forth
in Dinwiddie. The definition of an "advocacy group" provided by Wusk, a
group which "promotes an issue," Trial
-17-
17
Tr. at 137 (Testimony of Wusk), states the common sense, lay understanding
of the term. See, e.g., Webster's II New Riverside University Dictionary
81 (1984) (defining "advocacy" as "[a]ctive support, as of a cause");
Webster's Ninth New Collegiate Dictionary 59 (1986) (defining "advocacy"
as "the act or process of advocating: support").5 That this phrase is
sufficiently concise is demonstrated by the consistency with which it was
interpreted: there was no evidence presented that any of the groups allowed
to use the NDSS office attempted to promote issues or causes, just as there
was no credible evidence that FAIR intended to do anything else.6
5
In Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.
788, 811-12 (1985), the Supreme Court had no difficulty in
comprehending the meaning or parameters of this phrase. The Court,
considering the argument that "a decision to exclude all advocacy
groups, regardless of political or philosophical orientation, is by
definition viewpoint neutral," stated that "we accept the validity
and reasonableness of the justifications offered by [the
government] for excluding advocacy groups." Id. (remanding for a
factual determination of whether viewpoint discrimination had taken
place). At no point did the Supreme Court declare the term
"advocacy group" to be vague or overbroad.
6
The majority does not contend that FAIR was not an advocacy
group, and under a common sense definition, FAIR must be considered
as such. At oral argument, FAIR acknowledged that it advocated for
changes in legislation. In addition, FAIR has been a registered
lobbyist, has allied itself with one of the major political
parties, self-proclaims that the purpose of its existence is to
"give low-income families a pro-active voice in Nebraska's Welfare
Reform program," Pl. Ex. 4, and sought to distribute postcards for
NDSS clients to send to Nebraska legislators. See FAIR, 890
F. Supp. at 862-63. The postcards contained specific political
requests regarding welfare reform, including "Please--no lifetime
limit that will add to homelessness. Please--no orphanages just
because we are poor. Please--no new baby penalties (family caps).
Don't punish us because we are born and our parents are poor." Pl.
Ex. 6 (emphasis in original). To compare FAIR's political advocacy
"with expressive activity intended to provide information on meal
preparation and the like," FAIR, 890 F. Supp. at 872, is, as noted
by the district court, "factually unfounded." Id.
-18-
18
As the district court noted, the regulation is "clear and simple."
FAIR, 890 F. Supp. at 875 n.14. A "direct benefit," under the parameters
of the policy, requires that a concrete good or service, including
educational or employment opportunities, go directly to welfare recipients
and their families. Under consistent NDSS practice, only groups offering
such tangible goods, educational or employment opportunities, or volunteer
services directly to welfare recipients or their families have been allowed
to access the lobby.7
Finally, I can perceive no vagueness or ambiguity in the phrase
"basic needs." Wusk, through his testimony and the materials he approved
for the bulletin board, provided specific examples of these basic needs:
employment, nutrition, shelter, clothing, education for children and
adults, tax assistance, and essential household appliances. Rather than
arguing that NDSS misapplied the policy in this case or suggesting that
FAIR meets any comparable basic need, the majority implies that Wusk erred
in other applications of the policy by considering the opportunities
provided by the Lincoln Children's Museum as meeting a basic need and in
concluding that, as a hypothetical example, CPR training did not. See Maj.
Op. at 6. I believe that Wusk, a welfare assistance service provider with
over two decades of experience, may well have a better notion of what
constitutes a "basic need" for Nebraska welfare recipients than does a
panel of federal judges. See Trial Tr. at 133 (Testimony of Wusk) (stating
that visiting children's museum "allows families to deal with some of the
stress that is maybe going on, and low income families [have] very, very
few opportunities sometimes to take advantage of some of those cultural
things, and this is the way that we do it"). Cf. New York City
7
By contrast, FAIR did not wish to provide any sort of
services or products to the welfare recipients, nor did it wish to
hire them as employees. Rather, FAIR wished to supply these
welfare recipients with political opinions, and with the
opportunity to act as a second-party lobbying arm of FAIR.
-19-
19
Unemployed & Welfare Council v. Brezenoff, 742 F.2d 718, 723 (2d Cir. 1984)
(Welfare agency "has much more experience managing welfare offices than the
courts have and must be given some discretion in determining what its
interests are and how best to further them."). In any event, a
disagreement over whether allowing impoverished children to access a
children's museum meets a basic psychological or educational need hardly
renders a policy vague.
These phrases, taken separately, are not vague, and they are even
less so when considered as a whole, in light of the purpose of the policy
and in the context of a welfare office. The NDSS office neither
"formulates or debates public policy," FAIR, 890 F. Supp. at 863, but
rather provides "a broad range of services to welfare recipients," id. The
purpose of "the policy was to minimize the numbers of groups allowed access
[to the office] as much as possible," id. at 865 (quotations and citations
to record omitted), in order to limit congestion in the lobby and to ensure
the dignified treatment of NDSS clients by not "forc[ing] NDSS customers
to encounter individuals promoting a particular political point of view in
order to obtain the necessities of life," id. at 866. Under these
circumstances, the clauses in the policy are sufficiently well-defined, as
is demonstrated by the consistency with which the policy has been applied.
I must echo the Supreme Court in concluding that the provisions of this
policy, while they "may not satisfy those intent on finding fault at any
cost, they are set out in terms that the ordinary person exercising
ordinary common sense can sufficiently understand and comply with, without
sacrifice to the public interest." Letter Carriers, 413 U.S. at 579.
IV.
Because the NDSS policy is not vague, it is necessary to determine
whether, as applied, the policy is unconstitutional.
-20-
20
While I agree with the district court and the majority that FAIR wished to
engage in expressive conduct generally protected by the First Amendment,
this determination only begins an analysis of whether the First Amendment
was violated by the NDSS office's policy.8
It is fundamental that the "existence of a right of access to public
property and the standard by which limitations upon such a right must be
evaluated differ depending on the character of the property at issue."
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).
In Perry, the Supreme Court described three categories of public fora. In
traditional public fora, such as streets and parks, expressive rights
receive the greatest degree of protection:
In places which by long tradition or by government
fiat have been devoted to assembly and debate, the rights
of the State to limit expressive activity are sharply
circumscribed. . . . [In] public forums, the government
may not prohibit all communicative activity. For the
State to enforce a content-based exclusion it must show
that its regulation is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve
that end. The State may also enforce regulations of the
time, place, and manner of expression which are content-
neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative
channels of communication.
8
Although declining to analyze the forum involved in this
case, the majority, citing to McIntyre v. Ohio Elections Comm'n,
115 S. Ct. 1511 (1995), seems to suggest that a heightened standard
of scrutiny should apply to NDSS's policy because FAIR wished to
engage in "core speech." See Maj. Op. at 10-11. McIntyre,
however, did not involve the regulation of speech in a nonpublic
forum, but rather a general prohibition on anonymous political
advertisements. See McIntyre, 115 S. Ct. at 1514-15 n.3 (quoting
statute). In a nonpublic forum, "core speech" may be regulated,
and prohibited, so long as the regulation is reasonable and
viewpoint neutral. See, e.g., Greer v. Spock, 424 U.S. 828, 838
(1976) (there is "no generalized constitutional right to make
political speeches or distribute leaflets at" a nonpublic forum).
-21-
21
Id. at 45 (citations omitted). See also International Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992) (describing
categories of fora). The second category of fora, the designated public
forum, "consists of public property which the State has opened for use by
the public as a place for expressive activity." Perry, 460 U.S. at 45.
So long as the state maintains a forum that is generally open to the
public, it is "bound by the same standards as apply in a traditional public
forum," id. at 46, and a "content-based prohibition must be narrowly drawn
to effectuate a compelling state interest," id. See also Cornelius, 473
U.S. at 800 ("[W]hen the Government has intentionally designated a place
or means of communication as a public forum speakers cannot be excluded
without a compelling governmental interest.").
The third category of fora, the nonpublic forum, consists of all
other public property. See Lee, 505 U.S. at 678-79. "Public property which
is not by tradition or designation a forum for public communication is
governed by different standards." Perry, 460 U.S. at 46. These standards
reflect the recognition that
the First Amendment does not guarantee access to property
simply because it is owned or controlled by the
government. In addition to time, place, and manner
regulations, the State may reserve the 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. As we have stated on several
occasions, the State, no less than a private owner of
property, has power to preserve the property under its
control for the use to which it is lawfully dedicated.
Id. at 46 (quotations and citations omitted). See also Cornelius, 473 U.S.
at 799-800 ("Nothing 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
-22-
22
might be caused by the speaker's activities."); Greer v. Spock, 424 U.S.
828, 836 (1976) ("The guarantees of the First Amendment have never meant
that people who want to propagandize protests or views have a
constitutional right to do so whenever and however and wherever they
please.") (quotations and citation omitted).
In distinguishing between a traditional public and designated public
fora, the Court in Lee explained that a traditional public forum has
immemorially been held in trust for the use of the public
and, time out of mind, [has] been used for purposes of
assembly, communicating thoughts between citizens, and
discussing public questions. . . . [A] traditional public
forum is property that has as a principal purpose . . .
the free exchange of ideas.
505 U.S. at 679 (quotations and citations omitted). By contrast, a
designated public forum is public property where the government
intentionally allows discourse. The Lee Court explained that
consistent with the notion that the government--like
other property owners--has power to preserve the property
under its control for the use to which it is lawfully
dedicated, the government does not create a public forum
by inaction. Nor is a public forum created whenever
members of the public are permitted freely to visit a
place owned or operated by the Government. The decision
to create a public forum must instead be made by
intentionally opening a nontraditional forum for public
discourse. . . . [T]he location of property also has
bearing because separation from acknowledged public areas
may serve to indicate that the separated property is a
special enclave, subject to greater restriction.
Id. at 679-80 (citations and quotations omitted).9
9
Lee held that a public airport is not a traditional or
designated public forum, and upheld a ban on solicitation. See 505
U.S. at 683, 685. In International Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 830, 831 (1992) (per curiam)
(Lee II), a companion case to Lee, the Court held that a ban on the
distribution of literature in the airport was nevertheless
unconstitutional, and relied by reference on various concurring and
dissenting opinions in Lee, which had disagreed with the majority's
-23-
23
FAIR does not contend that the NDSS office is a traditional public
forum, see Appellant's Br. at 31 ("plaintiffs agree that the lobby of the
Lancaster County Office of the Nebraska Department of Public Services is
not a traditional public forum"), and I agree. There was no evidence
presented that the NDSS office has traditionally been used for public
expression and, rather than having as a principal purpose the free exchange
of ideas, the NDSS office is used to distribute "a broad range of services
to welfare recipients." FAIR, 890 F. Supp. at 863.
Nor has the NDSS office been intentionally opened to public
discourse. There was no evidence presented that the NDSS office has a
policy of free access for expressive activities. Rather, as found by the
district court, NDSS's "policy was to resist opening the waiting/reception
area 'up for the world.' [Trial Tr. at 120.] In fact, the policy was to
'minimize the numbers of groups' allowed access 'as much as possible.'
[Trial Tr. at 150-51.]" FAIR, 890
forum analysis.
In the instant case, the district court undertook an analysis
of the forum under the tests enunciated by the majority in Lee as
well as the principle concurrence, and concluded that the result--
that the NDSS local office lobby was a nonpublic forum--was the
same under both. See FAIR, 890 F. Supp. at 868-74. I agree with
the district court that either test would achieve the identical
result, and I agree that the Court could have been clearer in its
directives in this area. See, e.g., AIDS Action Comm. of Mass. v.
MBTA, 42 F.3d 1, 9 (1st Cir. 1994) (describing "the relatively
murky status of the public forum doctrine"); Jacobsen v. United
States Postal Serv., 993 F.2d 649, 655 n.2 (9th Cir. 1992) (noting
that, as a result of the Lee and Lee II decisions, "the
jurisprudence in this area is now quite muddied"). I believe,
however, that the district court's duplication of effort was
unnecessary. Chief Justice Rehnquist's opinion in Lee, which
clearly set out the mechanics of forum analysis, commanded a
majority of the Court, and Lee II in no way overruled its companion
case. Because of this, I will only apply the majority test from
Lee.
-24-
24
F. Supp. at 871. FAIR contends, however, that in allowing groups like Head
Start to distribute materials at the office, NDSS necessarily created a
designated public forum. I disagree.
"[A] practice of allowing some speech activities on [government]
property do[es] not add up to the dedication of [government] property to
speech activities." United States v. Kokinda, 497 U.S. 720, 730 (1990)
(plurality opinion). The only groups allowed access to the NDSS office,
"[j]ust like NDSS, . . . provided basic social services to welfare
recipients." FAIR, 890 F. Supp. at 871.10 Where "government property is
not dedicated to open communication the government may--without further
justification--restrict use to those who participate in the forum's
official business." Perry, 460 U.S. at 53 (note omitted).11
10
While at trial there was some testimony that a group of Girl
Scouts had, several years before, used the NDSS office when it was
housed in a different building, see Trial Tr. at 82 (Testimony of
Stippel), the district court found that "Wusk specifically denied
allowing the Girl Scouts access to the waiting/reception area to
hand out materials." FAIR, 890 F. Supp. at 866 n.4. The majority,
while criticizing the district court, see Maj. Op. at 4-5 n.2,
fails to discern clear error in this finding. Because "[t]he
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," Cornelius, 473 U.S. at
802, the alleged presence of the Girl Scouts is largely irrelevant
to this analysis.
11
In Greer, the Supreme Court held that a military base was not
a designated public forum, and that a prohibition on political
campaigning on the base was reasonable. In reaching this decision,
the Court explained:
The fact that other civilian speakers and
entertainers had sometimes been invited to appear
at Fort Dix did not of itself serve to convert Fort
Dix into a public forum or to confer upon political
candidates a First or Fifth Amendment right to
conduct their campaigns there. The decision of the
military authorities that a civilian lecture on
drug abuse, a religious service by a visiting
preacher at the base chapel, or a rock musical
concert would be supportive of the military mission
of Fort Dix surely did not leave the authorities
-25-
25
Because the "providers of information on nutrition and the like were
participating with the agreement of welfare officials in the welfare
office's official business--the provision of basic social services to
welfare recipients . . . the use of the property by groups such as the
county extension agency providing nutritional information does not
transform the property into a public forum." FAIR, 890 F. Supp. at 872.
I must therefore agree with the district court that the NDSS office was not
a designated public forum.
V.
Because the NDSS office was neither a traditional public forum nor
a designated public forum,
the regulation at issue must be analyzed under the
standards set forth for nonpublic fora: It must be
reasonable and not an effort to suppress expression
merely because public officials oppose the speaker's
view. Indeed, control over access to a nonpublic forum
can be based on subject matter and speaker identity so
long as the distinctions drawn are reasonable in light of
the purpose served by the forum and are viewpoint
neutral. The Government's decision to restrict access to
a nonpublic forum need only be reasonable; it need not be
the most reasonable or the only reasonable limitation.
Kokinda, 497 U.S. at 730 (quotations and citations omitted; emphasis in
original). See also Perry, 460 U.S. at 49 ("Implicit in the concept of the
nonpublic forum is the right to make distinctions in access on the basis
of subject matter and speaker identity. These distinctions may be
impermissible in a public forum but are inherent and inescapable in the
process of limiting a nonpublic forum to activities compatible with the
intended
powerless thereafter
to prevent any civilian from entering Fort Dix to speak on any
subject whatever.
424 U.S. at 838 n.10.
-26-
26
purpose of the property. The touchstone for evaluating these distinctions
is whether they are reasonable in light of the purpose which the forum at
issue serves."). In addition, "[c]onsideration of a forum's special
attributes is relevant to the constitutionality of a regulation since the
significance of the governmental interest must be assessed in light of the
characteristic nature and function of the particular forum involved."
Kokinda, 497 U.S. at 732 (quotations and citations omitted).
A.
The NDSS office's policy in this case is clearly reasonable. The
official business of the NDSS office is to provide services to welfare
recipients. See FAIR, 890 F. Supp. at 872. In light of this official
business, it is reasonable for NDSS to allow access to the office to groups
which provide direct benefits which meet welfare recipients' basic needs,
because this allows NDSS to fulfill its mission. It is also reasonable for
NDSS to prohibit access by all other groups, because this prevents
congestion. Cf. Lee, 505 U.S. at 683-84 (restriction on solicitation
reasonable because it limits disruption).12 Similarly, a prohibition of
12
Wusk described the conditions of the NDSS office, and the
concerns over congestion:
We also have large groups of people at different
times during the month. The first five working
days are usually very hectic. In the first three
working days, for instance, in March, we over-the-
counter issued to about 1,920 households. That's
for sure at least one individual, but many people
don't come just by [them]selves. They come with
children, they may come with a significant other,
they may come with a grandparent and so the 1,920
[households are] really magnified by many other
people. Also, we do business on those days'
business, meaning that we do . . . quarterly
reviews, six-month reviews, yearly reviews,
depending on what program you're in and how you're
set up. These continue on an ongoing basis, plus
we have new applicants
that walk in on a daily basis wanting to apply for food stamps or
ADC or one of the other programs, so it becomes a high traffic
area, so we have taken a look and said we are not really wanting to
-27-
27
expressive activities by advocacy groups is also reasonable; NDSS's
"position as a government controlled and financed public facility, used
daily by thousands of people, ma[kes] it highly advisable to avoid the
criticism and embarrassments of allowing any display seeming to favor any
political view." Lebron, 69 F.3d at 658 (upholding AMTRAK's restriction
on political advertisements as reasonable).13 Finally, NDSS's prohibition
on advocacy groups is also reasonable as an effort to treat NDSS clients
with dignity and to prevent their coercion. As found by the district
court,
In this case, the waiting/reception area is filled
with some of the most underprivileged in our society
seeking benefits from the state for the most basic
necessities of life. . . . [T]hese waiting/reception
areas are not public or limited public forums but are,
indeed, but holding stations for the most pitiful captive
audiences in our country.
open it up for the world.
Trial Tr. at 120.
13
FAIR intended to engage in a totally different type of
expressive activity than that practiced by the groups allowed
access to the NDSS office. As found by the district court, "one
type of speech is intended to persuade on issues of public policy,
while the other is intended to convey factual information on basic
human needs totally unrelated to public policy." FAIR, 890 F.
Supp. at 872. These different types of speech could have, as noted
by the district court, different impacts on the NDSS office:
Stippel testified that when she engaged in [FAIR's]
proposed expressive activity on the sidewalk in
front of the building where NDSS was situated, she
encountered "problems" when "we gave the
information to somebody that didn't agree with our
side," which in turn caused "heavy discussions."
[Trial Tr. at 89.] It is inconceivable that the
provision of information about recipes, how to fill
out tax form 1040-EZ, or how to register for a
prekindergarten or GED program would cause a
"problem" involving a "heavy discussion."
Id.
-28-
28
These individuals--some of whom need protective
services because of mental impairments, and all of whom
need state assistance for some or all of the necessities
of life--are peculiarly susceptible to coercion, whether
subtle or overt, regarding, among other things, public-
policy issues. This is true both because of the welfare
recipients' unfortunate stations in life and because of
the captive nature of their attendance at the welfare
office.
FAIR, 890 F. Supp. at 873-74 (quotations and citation omitted). See also
Brezenoff, 742 F.2d at 722 (welfare recipients "may well be peculiarly
susceptible to verbal misrepresentations, whether because of the noisy and
crowded atmosphere of [a welfare office] lobby, language barriers, or even
a misperceived need to do anything necessary to ensure the receipt of
welfare checks or to lessen the wait in [the welfare office]").14
14
Wusk testified regarding the need to preserve the dignity of
NDSS clients:
When customers come to the Department of Social
Services to apply for ADC or food stamps or
Medicaid, in Lancaster County, at least, they have
no other choice. We are the only office that
offers those types of services. We do very few
applications external to the [local office]. So
when those folks come, they are a captive audience.
We really believe that we need to treat them with
dignity and treat them with respect, and I can
require, within my office, my staff to do that,
and, in fact, I make it mandatory. There is no
exception to that. When they come, I believe they-
-that our customers have expectations that they
should not have to go through a large group of
people [sitting] wanting to give them information
because they usually come with very specific
reasons in mind. I need food, I need shelter, I
need clothing, I need medical, and when we start to
put large groups or other groups in there offering
literature and those kinds of things, it's easy to
infringe on my customers' rights.
Trial Tr. at 119-20.
-29-
29
The reasonableness of NDSS's policy is further supported because
there are "substantial alternative channels that remain
-30-
30
open" to FAIR to disseminate its message. Perry, 460 U.S. at 53. FAIR has
access to the sidewalks outside of the building housing the NDSS office,
see FAIR, 890 F. Supp. at 876, as well as other public fora. Although FAIR
would undoubtedly prefer the opportunities presented by a captive audience
in the NDSS office, "[t]he First Amendment does not demand unrestricted
access to a nonpublic forum merely because use of that forum may be the
most efficient means of delivering the speaker's message." Cornelius, 473
U.S. at 809.
B.
There is no clear error in the district court's finding that NDSS's
policy "is not an effort to suppress the speaker's activity due to
disagreement with the speaker's view." FAIR, 890 F. Supp. at 877 (quoting
Lee, 505 U.S. at 679). As noted by the district court,
The evidence establishes without contradiction that Wusk
enforced the regulation without regard to whether he
agreed or disagreed with the message of the speaker.
[Trial Tr. at 134.] In fact, the evidence establishes
that Wusk enforced the regulation against a group he
belonged to and supported. [Trial Tr. at 140.]
Id. While the NDSS policy's prohibition of access to the NDSS office by
outside advocacy groups does distinguish on the basis of message content,
this is not synonymous with viewpoint discrimination. The Supreme Court
has held that
in determining whether the State is acting to preserve
the limits of the forum it has created so that the
exclusion of a class of speech is legitimate, we have
observed a distinction between, on the one hand, content
discrimination, which may be permissible if it preserves
the purposes of that limited forum, and, on the other
hand, viewpoint discrimination, which is presumed
impermissible when directed against speech otherwise
within the forum's limitations.
-31-
31
Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct. 2510, 2517
(1995).
The NDSS policy allowed expressive activities which provided a direct
benefit meeting welfare recipients' basic needs. The content of FAIR's
message was political advocacy--a type of speech not allowed by NDSS's
policy. Because FAIR's viewpoint was irrelevant to the decision to
disallow its access to the NDSS office, there was no viewpoint
discrimination. Because the NDSS policy is otherwise reasonable, the
policy does not violate the First Amendment.15
VII.
Because FAIR has no First Amendment right to access the NDSS office,
its equal protection argument must fail unless FAIR can show that it is
similarly situated to those groups allowed access. See Perry, 460 U.S. at
54-55. Because FAIR is an advocacy group which does not provide a direct
benefit which meets welfare recipients' basic needs, it is not similarly
situated to those groups allowed access to the NDSS office. NDSS has
therefore not violated FAIR's right to equal protection in this case.
15
Similarly, NDSS's restrictions on FAIR's access to the NDSS
office's bulletin boards was reasonable. As found by the district
court,
The fact is that space on the bulletin boards is
quite limited as they are small. [Trial Tr. at
132.] Indeed, in the photos introduced into
evidence, the bulletin-board space appears almost
entirely devoted to social- service notices. (Ex.
1, Prelim. Hr'g (photos)). Consequently, if they
honored Plaintiffs' request, Defendants [NDSS]
would undoubtedly be confronted with similar
requests by other advocacy groups, resulting . . .
in lurking doubts about favoritism, and sticky
administrative problems in parceling out limited
space to eager politicians.
FAIR, 890 F. Supp. at 876 (quotations & citation omitted).
-32-
32
VIII.
Because the NDSS office is a nonpublic forum, and the policy
regulating expressive activities in the NDSS office is reasonable, not
based on viewpoint, and not vague, I would affirm the district court. In
reversing the district court, the majority has usurped the fact-finding
function of the district court, misapplied the law, and opened a nonpublic
forum to the world at large. I dissent.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-33-
33