Currier v. Potter

GOULD, Circuit Judge,

concurring in part and dissenting in part:

I concur in the judgment in this case, and I join Judge O’Scannlain’s opinion except as to Parts III.A and III.B. I write separately first to express my view that the First Amendment challenge to the Post Office’s delivery policies should be considered under at least the limited public forum doctrine. Nonetheless, even under that doctrine, I reject the Appellants’ facial challenge to the Post Office’s delivery policies. I also write separately to discuss an issue that we do not reach, one that the Appellants did not advance and that the majority opinion explicitly leaves open in its footnote nine. This deferred issue is whether the Post Office’s general delivery regulations are constitutionally permissible if, in application to an individual person, they substantially burden that person’s right to receive mail. This issue will squarely arise in an “as applied” challenge asserted by a homeless person who demonstrates an inability reasonably to *733gain access to general delivery mail at the main Post Office branch.

That a segment of citizens of our great country are left by the struggles of life with no home is unfortunate, to say the very least, but the struggles of the homeless neither detract from their character nor limit their right to exercise freedoms guaranteed by the Constitution. The right to receive mail is a fundamental aspect of the freedom of speech secured by the First Amendment. We recognize this important principle today, although we reject the facial constitutional challenge to the Post Office’s general delivery system.

Notwithstanding our recognition of the right to receive mail, I am left with the impression that some homeless persons now living in the greater Seattle area cannot travel to Seattle’s main post office without undue burden to retrieve general delivery mail because jobs, disabilities, or other circumstances prevent their travel. I agree with the majority that this issue is not squarely raised as the case was framed by the complaint and the proceedings on appeal. Yet, the issue warrants an expression of my views that may assist the Postal Service and the parties litigating for adequate procedures for the homeless.

The crux of the problem, as I see it, is that the United States Postal Service’s current limitations on general delivery mail do not permit homeless persons to apply for general delivery at branch post offices under any condition whatsoever, even in cases of undue hardship. This unyielding policy unreasonably and substantially impairs the ability of some homeless persons to receive mail and to exercise their First Amendment rights. Nothing further can be declared in this case. But in an appropriate case, I would hold that, although the Post Office need not routinely make general delivery available at all branch post offices for all persons who are homeless, the Postal Service’s regulations, to comply with the First Amendment, must make due provision for general delivery to a homeless person at a branch office when that person has shown undue hardship in retrieving mail at the main post office.

The right to receive mail is protected by the First Amendment. Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965) (holding unconstitutional under the First Amendment a law that burdened the individual’s receipt of mail). The right to receive and send mail through the postal system is “almost as much a part of free speech as the right to use our tongues.” Id. at 305, 85 S.Ct. 1493 (quoting Justice Holmes’ dissent in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 65 L.Ed. 704 (1921)). Before the telegraph, telephone, electronic mail, and hand-held communication devices, there was mail — a bedrock of communication. Linking the government to the people, the mail system was at its inception “to many citizens across the country the most visible symbol of national unity.” United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 122, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981).

When our Constitution was first penned, the Framers recognized the importance of mail delivery and gave Congress explicit power to create a national postal system. U.S. Const. Art. I, § 8, cl. 7. A federal postal system was developed, and as the nation grew it built roads, canals, and railroads to facilitate mail delivery. From inception of our nation to the present, the delivery of the mail has been a foundation of our civilization, of our discourse as a people, of our economic well-being, and of *734our communications for family and leisure purposes.

At the forefront of its mandate to the Postal Service, Congress recognized the power of the post to connect government to people, people to government, and people to people:

The United States Postal Service shall be operated as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people. The Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities.

39 U.S.C. § 101(a).

Because plaintiffs, a class of homeless persons living in the City of Seattle, do not have a physical address, they cannot benefit from the typical carrier delivery service. Also, without a physical address plaintiffs cannot, under Postal Service regulations, obtain a post office box even for a fee. The homeless are left to depend on the Postal Service’s general delivery service if they are ever to receive mail. And even though the City of Seattle covers eighty-four square miles, general delivery service is now available only at the main post office in downtown Seattle during limited business hours. Moreover, the policy of providing general delivery service at only one location is applied without regard to where the recipients of general delivery mail might live, their financial status, or, perhaps most importantly, their ability to travel to the downtown post office during the hours that general delivery service is available.

I do not doubt that the Postal Service has a legitimate interest in avoiding the expense and administrative burden to the government that might be caused by a general practice of delivering mail to homeless persons at any branch office requested by the person under any circumstances, regardless of need. But I do not believe our Constitution would permit us to ignore, in a case where issues of burden are properly framed for particular persons, that the Postal Service’s current policies and regulations in some cases will grievously burden the First Amendment rights of some homeless persons.

I see no policy reason advanced by the Postal Service why this must be so. The homeless plaintiffs here have asked only for broad and not for limited relief, and it is not surprising perhaps that the Postal Service in this case did not address whether its regulations could be modified at modest expense to permit general delivery to some homeless persons at branch post offices under demanding individual circumstances. Nonetheless, in assessing the homeless plaintiffs’ First Amendment claims, in an appropriate case we will need to consider if the current policies and procedures chosen by the Postal Service are so unresponsive to particular human burdens as to violate the Constitution.

All should agree that when a homeless person can make a showing of particular circumstances preventing retrieval of general delivery mail at the main post office, that homeless person will be cut off from all communication by mail with family, friends, the government or others who may want to communicate with him or her. To determine whether grievous burdens on First Amendment rights for some homeless persons rise to the level of a constitutional violation, we must apply the tri*735partite forum analysis that has been prescribed by the Supreme Court. Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). It is here where I depart from the panel majority.

The first of the three steps is to identify the forum to which the plaintiffs seek access. Id. at 801, 105 S.Ct. 3439. Simply stated, members of the homeless community want to receive their mail. This reflects nothing more, and nothing less, than a basic human need for communication. In feeling this need, the homeless stand on equal footing with others quartered more comfortably. Plaintiffs allege that there is currently no viable way of receiving mail on a regular and reliable basis. Plaintiffs challenge the general delivery service and the no-fee post office box not because the homeless plaintiffs want these specific services but because these services are potential means for plaintiffs to exercise their paramount right to receive mail despite their homelessness. For plaintiffs, seeking access to general delivery service, the no-fee post office box service, or any other service is a way to gain access to the mail system. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46-47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (analyzing as the relevant forum the internal school mail system to which a rival teacher’s union sought access). It is access to mail that is the relevant- forum.

Having determined that the mail system is the relevant forum, the second and next step in the required forum analysis is to determine whether the mail system is a public forum or nonpublic forum. Cornelius, 473 U.S. at 802, 105 S.Ct. 3439.1 Because the mail system is a “channel of communication” created by the government “for use by the public at large for assembly and speech,” id., it can properly be characterized as a public forum. See United States Postal Serv. v. Council of Greenburgh Civic Ass’n, 453 U.S. 114, 137-38, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) (Brennan, J., concurring) (concluding that “the mails and the letterbox are specifically used for the communication of information and ideas, and thus surely constitute a public forum”); 39 U.S.C. § 101(a) (requiring that the Postal Service provide the “basic and fundamental service” to “the people.”). But cf. Perry, 460 U.S. at 46-47, 103 S.Ct. 948 (concluding that the school’s internal mail system was a nonpublic forum).2

If, as I have concluded, the mail system is a public forum, then the Postal Service regulations challenged by the plaintiffs, namely the general delivery service re*736strictions, are subject to the “time, place and manner” test. To pass constitutional muster under the “time, place and manner test,” the restrictions must be: (1) “justified without reference to the content of the regulated speech,” (2) “narrowly tailored to serve a significant governmental interest,” and (3) able to “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

Plaintiffs do not contend that the restrictions on the general delivery service are not content-neutral. The limitation on general delivery mail applies to the homeless whether they receive letters from family or notes from friends, whether they look for correspondence on the lighter affairs of life or letters of the greatest gravity, whether their mail is personal or political, whether it relates to finances or fun. So, the first prong of the “time, place and manner” test is satisfied. All mail to the homeless regardless of content comes with the same burden.

As to the second prong, the Postal Service's stated interests in restricting the general delivery service to the main post office are cost and efficiency. Congress established the Postal Service as a pseudo-private agency, giving the Postal Service flexibility to control its costs and develop businesslike plans for economical, effective operations. See Nat’l Ass’n of Postal Supervisors v. United States Postal Serv., 602 F.2d 420, 430-31 (D.C.Cir.1979) (reviewing legislative history and purpose for Postal Reorganization Act). Because Congress intended the Postal Service to operate in a businesslike manner, the Postal Service has a good, strong interest in maintaining low costs. Cf. Kaplan v. County of Los Angeles, 894 F.2d 1076, 1081 (9th Cir.1990) (holding that a public entity does not violate the First Amendment by collecting charges that fairly reflect costs of maintaining a limited public forum). For purposes of the “time, place and manner” test, I conclude that the restrictions are properly and narrowly tailored to serve the government’s significant interests because the Postal Service can more effectively keep costs down, to the benefit of all served by the postal system, by limiting the general delivery service to the downtown post office. Ward, 491 U.S. at 798, 109 S.Ct. 2746 (explaining that “narrowly tailored” does not require that the regulation to be the least restrictive means available but rather that the “regulation promotes a substantial government interest that would be achieved less effectively absent the regulation”).

The Postal Service regulations in my view satisfy the first two prongs of the “time, place and manner” test, but the Postal Service’s restrictions of general delivery will still run afoul of the third prong, and thus offend the First Amendment, if there are not ample alternative channels for communication. Because the plaintiffs are homeless, the mail service is the only means for them to receive notification of governmental benefits such as veteran’s benefits or public housing opportunities. Lacking a physical address, plaintiffs cannot .avail themselves of other services offered by the Postal Service, such as obtaining a post office box even for a fee. And, though some homeless shelters and service centers provide mail service, such services are limited and often unreliable.

For these reasons, the only viable means for members of the homeless community to receive mail is by general delivery service. Seen in this light, I conclude that the limited general delivery service currently offered by the Postal Service is not *737sufficient for all homeless persons.3 While general delivery might be adequate for some homeless persons — those that can reasonably be expected to travel to the downtown post office on a regular basis to pick up mail during the specified times— limited general delivery is not at all sufficient for homeless persons like sixty-one year old Willard Johnson, whose shelter is nine miles from the downtown post office, whose arthritis makes it difficult and painful for him to travel long distances, and who was almost terminated from receiving public assistance because he did not receive notice of a case appointment sent to him at another shelter.

Considering that the bulk of the population gets mail delivered to the front step of a home or in the lobby of an apartment building, it is unreasonable to burden homeless persons in all cases, regardless of their individual circumstances, with the task of taking public transportation for several miles at particular hours, during which they might be expected to be at work, if they are to pick up their mail. This concern is exacerbated by the problem that a long and hopeful journey to the main post office in many cases might greet the homeless with nothing but junk mail. These trips are ones that plaintiffs are bound to repeat every couple of days to avoid missing potentially important eom-munication regarding government services. And in some cases, particularly those involving the disabled, there is not merely a grave burden but a practical impossibility for the homeless to reach the main office at required times to get mail.

In eases where general delivery service at the main post office is not a practicable venue, or comes only with undue burden, we should see that this effective denial of mail delivery is an egregious infringement of First Amendment rights, particularly when one considers that people who are homeless often do not have access to other important methods of communication such as the telephone or email. Contact through the mail system may be the only way that homeless people can be notified of potentially life-altering information or services such as the availability of public housing, receipt of veteran’s benefits, or communications relating to other social services. And it may be the only way the homeless can keep in touch with a parent, a child, or a friend.

While I would agree that the Postal Service is not constitutionally required to expand services to any person who is otherwise effectively served by the existing system, and while the Postal Service is not constitutionally required to expand without restraint or condition general delivery services in particular,4 I would conclude that *738the Postal Service’s current regulations and operation offend the First Amendment by effectively precluding mail delivery to some homeless persons who lack an adequate alternative channel of communication if they practically cannot receive general delivery mail at the main post office.

This issue is not squarely presented, and in footnote 9 of the majority opinion, has been left open for another day. As to the Appellants’ facial First Amendment challenge to the postal delivery regulations, I disagree with the majority that “non-public” forum analysis applies. Instead, I would hold that the delivery of the mail is a public forum. Nonetheless, applying the test for public forums leads me to conclude that the Appellants’ facial challenge must in general fail, though I would reach a different result in the proper “as-applied” case where undue burden was shown. I therefore concur in the judgment of the panel majority as to Part III.A and Part III.B. I also join in full the remainder of the panel majority’s opinion.

. Though there are two different types of public fora, traditional or limited, the "time, place and manner” test applies to both limited public fora and traditional public fora when the regulations are content neutral: “Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.” Perry, 460 U.S. at 46, 103 S.Ct. 948. It is not necessary to decide whether the mail system is a traditional public forum or a limited public forum because it qualifies as at least a limited public forum and thus the constitutional test is the same.

. The Supreme Court’s conclusion in Perry was based on the fact that the plaintiffs were not among the class of people specifically permitted by the school to use the forum and were unlike the class of people who were allowed to use the forum. 460 U.S. at 47-48, 103 S.Ct. 948. Here, by contrast, the mail system is open to the public at large and plaintiffs do not fall outside of the operating bounds of the mail system. Cf. Greenburgh, 453 U.S. at 137, 101 S.Ct. 2676 (Brennan, J., concurring) (noting that "[o]nly where the exercise of First Amendment rights is incompatible with the normal activity occurring on public property have we held that the property is not a public forum.”).

. That the regulation only impermissibly burdens some, not all or most, homeless persons is why I reject the Appellants’ facial challenge to the delivery regulations. But, as applied to those who cannot get general delivery at the main Post Office because of undue hardship, in my view the delivery regulations must give way to First Amendment values. It would be unreasonable to require the Post Office to provide general delivery upon demand at any branch with no particularized showing of need; but it also would be unreasonable to say that the Post Office need not customize a general delivery system in cases where a homeless resident would otherwise be deprived of all mail service if required to access general deliveiy at the main branch.

. Because in a proper case I would conclude that the Postal Service has violated the First Amendment by effectively denying some of the members of the plaintiff class access to the mail system, the Postal Service would be free to adopt any changes to their mail service that would adequately afford all plaintiffs such access. One possible remedy might look like this: The Postal Service could continue to collect all of the general delivery mail at the main post office but allow persons without a physical address to fill out a sworn form or *738affidavit at the main post office requesting that their general delivery mail be forwarded to another, more convenient post office branch when necessary to avoid a particular undue burden to them based on specific circumstances to which they can attest. The Postal Service could devise a fair-minded standard that would generally accomplish efficiencies but accommodate the unusual cases where a particular undue burden on a homeless person makes a routing of general delivery mail to their neighborhood branch fair and reasonable. The Postal Service might also limit the forwarding requests such that mail could only be forwarded from the main post office to branch offices but not between branch offices, like mail moving from the hub of the wheel outward but not along the rim. Such a system would allow the Postal Service to maintain a centralized location where it could sort and conduct security screening of general delivery mail and at the same time the Postal Service in exceptional cases meeting the undue burden standard could forward the sorted bundles of general delivery mail using a forwarding service that is already established and provided to persons with physical addresses when they move.