concurring in part, dissenting in part:
I concur in the Court’s opinion except its vacation and remand of the District Court’s Judgment which upheld the constitutionality of Regulation [4], and respectfully dissent from that part.
Because I believe a summary of the trial evidence will present the Regulation [4] issue more acutely, I begin at the beginning with the complaint.
The 14-page complaint, alleging a § 1983 violation, was a minicopy of the voluminous complaint in Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2nd Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974). It sought a temporary and permanent injunction, a declaratory judgment, and damages and attorney’s fees, alleging that each of the defendants’ 5 regulations of March 15,1977 and the granting of special privileges and status to defendants’ Client Advisory Committee was unconstitutional. The temporary injunction was denied, and plaintiffs’ appeal therefrom was withdrawn.
Plaintiff, New York City Unemployed and Welfare Council, “is an independent union of welfare recipients. Over 8500 members believe that welfare recipients and other poor people have the right to, and need, union representation in the decision-making processes which affect their lives.” (Pltfs’ Exhibit 6). The Council’s president testified that some of its members paid its yearly dues of $1. and some did not, and all its workers were unpaid volunteers. There was other testimony that to help defray its office expenses it received about $1500 a month from an unidentified prosperous middle class group of contributors. The other plaintiffs are members of the Council. Defendants are officers of the Human Resources Administration, the agency of the City of New York which administers its welfare program.
“[Cjonsideration of a forum’s special attributes,” the Supreme Court tells us, “is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved.” Heffron v. International Society for Krishna Consciousness, et al., 452 U.S. 640, 650, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981). We therefore detail the evidence relating to the enormity of the city’s welfare program and its facilities and some of the problems inherent in the enterprise.
In 1980 there were 320,000 welfare recipients on the city’s payroll. At one welfare center (Concourse) there were 176 employees. The daily average number of people who came to each of the city’s 41 relief centers was 1500. Of these, an average of 1200 were welfare recipients, and the balance children or members of the recipients’ families or interpreters. They form lines outside of the building each morning at 7:30 a. m.
Although 15 blueprints of 15 of the centers were offered and received in evidence, they have not been made part of the record on appeal and are not in this Court’s or the District Court’s files. Also, defendants’ answers to interrogatories touching on these facts, for some unexplained reason were not offered in evidence. It appears, however, to be undisputed that 200 welfare recipients would be a fair average of those waiting at any given time on any given day in any one of the welfare centers’ waiting rooms, and that the average waiting time for all recipients is about four to five hours. Each welfare recipient must meet with a case worker every six months to prove that he or she still needs assistance. The welfare re*242cipients’ names are not announced over the loud speaker, and their anonymity is retained by announcing only their street addresses.
We quote and underscore Regulation [4] to emphasize its two prohibitions and the place:
“[4] Organizations will not be permitted to solicite [sic] membership fees or contributions from public assistance recipients in the center.”
At trial, plaintiffs offered no evidence that they had solicited or tried to solicit membership fees or donations in any one of the 41 welfare centers, commonly called IMCs, at any time after March 15,1977, the date of defendants’ regulations, nor was there testimony as to how a waiting welfare recipient could be distinguished as one who would be owing or not owing a membership fee, or that he or she was a member of plaintiff Council’s union. But there was testimony by a plaintiff witness how a welfare recipient would be solicited outside an IMC and if agreeable, $1. would be collected then and there and the recipient would be given a membership card in the union. As for contributions from welfare recipients, there was testimony by a plaintiff witness that they would not ask for contributions from such people because they could not afford any.
In its Statement of Claim, paragraph 41 of the complaint alleges only:
“41. Defendants’ ‘regulations’ which prohibit the voluntary payment of membership dues violates the First and Fourteenth Amendments to the U. S. Constitution.”
There was also substantial testimony relating to the disturbances inside and outside the Concourse Center and the resulting confusion and stoppage of defendants’ work that they were required to do by statute; also that the plaintiffs’ Council in some cases was also responsible for such disorder, and it was these disturbances that prompted the making of the written regulations. The same regulations were in existence before March 15, 1977 but they were not in writing.
In addition to members of plaintiffs’ Council there are members of four other welfare organizations that come to the welfare centers to help improve the recipients’ daily living by acting as an advocate for them, by advocating for more money, and representing them at hearings and distributing leaflets. Each organization has its own strategy and different approach with the welfare recipients, some have huge demonstrations, some come just to advocate, some try to approach the heads of defendants’ agency. Plaintiffs’ Council’s strategy was described as the direct confrontation, good give-and-take approach to the emotions by rhetoric — demonstrations outside and attempts to come inside — some carry banners. All such groups were permitted without let or hindrance to canvass the recipients to induce them to join their respective groups. They are also allowed to post signs stating their aims and soliciting membership.
DISCUSSION
After both sides rested, the District Court orally delivered its findings of fact and conclusions of law, beginning: “This is going to be necessarily somewhat disjointed. I make the following findings of fact and conclusions of law.” Addressing itself to matters other than Regulation [4], it continued:
“I conclude that it is appropriate to deny any organization the right to solicit membership fees or contributions from public assistance recipients in the Center for the reasons given by Mr. Burdick. I find that, therefore, [it] to be a reasonable regulation * * *.
I do find these regulations were legitimately promulgated to meet a need and that the plaintiff’s organization, albeit forceful, I gather has caused some problems vis-a-vis the city.”
Then, after discussing the credibility of a witness for plaintiffs and the issue of attorney’s fees, it concluded with the phrases: “As I stated, the foregoing constitutes the Court’s findings of fact and conclusions of law. You may settle an appropriate judgment before me on notice.”
*243Although appellants do not make any argument that any findings of fact are erroneous, the Court construes the District Court’s oral findings of fact and conclusions of law relating to Regulation [4] without quoting the trial court’s words or phrases, and holds that its “statements dealt with [a] the reasonableness of defendants’ concern and [b] the responsiveness of Regulation [4] to that concern,” [and] “we regard them as findings of fact and we find them not to be clearly erroneous.” (Emphasis ours)
In sum, the Court “regarded” (A) the defendants’ concern (we assume this equates with the District Court’s words “for the reasons given by Mr. Burdick”) was reasonable, and (B) the responsiveness of Regulation [4] to that concern (we assume this equates to the District Court’s words: “I find therefore [it] to be a reasonable regulation.”)
We respectfully submit that because the Court also found Regulation [4] to be content-neutral, such findings of fact and the fact that the defendants’ waiting rooms are not public forums, the District Court’s holding in United States Postal Service v. Council of Greenburgh Civic Associations, et al., 453 U.S. 114, 131 fn.7, 101 S.Ct. 2676, 2686 fn.7, 69 L.Ed.2d 517 (1981), four months later (infra, p. 9).
We further respectfully submit that although preventing of fraud is a legitimate government interest, as this Court points out, fraud or the prevention of it was not the subject matter of Burdick’s testimony. He never mentioned the word, nor do the defendants in their brief. The HRA was concerned with the potential that the waiting welfare recipients in the center might feel that being solicited for contributions or dunned for dues not paid, that they had to pay for public assistance.
Again, instead of quoting Regulation [4] in haec verba and the phrases of the trial court, and using the word “conclusion” as distinguished from the Court’s words “I conclude,” the Court holds that the “court’s conclusion * * * that the defendants’ total ban on solicitation was ‘appropriate’ and their promulgation of the regulations ‘legitimate’ [ ] and ‘reasonable,’ goes beyond fact finding, and is a conclusion that regulation [4] does not impermissibly infringe plaintiffs’ First Amendment rights.” With such premise the Court’s holding is that the District Court should have considered if such a ban was the least restrictive of preventing the false impression that defendants feared. Such holding, we respectfully suggest, is a rephrasing of the trial court’s words, and converting a finding of fact into a conclusion of law which, of course, is not protected by the “clearly erroneous” doctrine of Rule 52(a) F.R.Civ.P. A fair reading of the District Court’s words:
“I conclude that it is appropriate to deny any organization the right to solicit membership fees or contributions from public assistance recipients in the Center for the reasons given by Mr. Burdick. I find that, therefore, [it] to be a reasonable regulation * *
I do find these regulations were legitimately promulgated to meet a need *
we submit our findings of fact that a correctly instructed jury could return as a general verdict accompanied by answers to interrogatories. Rule 49(b) F.R.Civ.P.
We in turn submit that such further inquiry is necessary only if a public forum is involved. United States Postal Service v. Council of Greenburgh Civic Associations, et al., 453 U.S. 114, 131 fn.7,101 S.Ct. 2676, 2686 fn.7, 69 L.Ed.2d 517 (1981), infra, p. 9.
The Court quotes the entire recross-examination of Burdick to show that at least plaintiffs’ counsel was seeking to learn from Burdick whether there was any experimental basis for defendants’ concern, but was prevented by the Court. Actually, the question was improper on recross, since the subject matter was not explored either on direct or cross, or redirect.
And finally, the Court suggests that in preventing fraudulent solicitation (Regulation [4] does not use the word “fraudulent”) a total ban will necessarily also exclude good faith solicitation of fully-informed clients. This must be like it is in heaven.
Relevant also, here, is the Court’s argument that there was no finding of the wel*244fare recipients’ actual impressions, assuming such proof would be admissible against these plaintiffs. Nor, we might add, did plaintiffs submit any contrary proof, either as to prospective or past impressions. Neither was there any such intrinsic evidence before the state courts of Ohio in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), to have persuaded the late Mr. Justice Douglas, concurring (or the plurality), to place or not to place his or its imprimatur on the proposed advertisement in the city’s buses, but he nevertheless concluded that: “I do not believe that petitioner has any constitutional right to spread the message before this captive audience.” (p. 308, 94 S.Ct. p. 2720).
Albany, supra, upon which this Court relies, also involved a welfare center. There, the welfare rights organization had been enjoined by the District Court from entering the first floor waiting room for welfare recipients to distribute leaflets. This Court dissolved the injunction and ordered the District Court to permit at least one person of the plaintiff’s organization to enter the waiting room to distribute leaflets and talk with the waiting welfare recipients. We submit Albany’s holding does not resolve the prohibited solicitations in our case. Here the solicitation involves the solicitation of membership fees or contributions from waiting welfare recipients in 41 IMCs in New York City. The solicitation of union fees, owed or not owed by welfare recipients, who are or are not members of plaintiffs’ Council, is not protected free speech but buckshot dunning for debts that might not be owing. Neither is a captive audience, in our opinion, a proper audience for solicitation of contributions by these plaintiffs, who never asked welfare recipients for contributions because they could not afford them.
We, of course, do not and cannot quarrel with the established principle that charitable solicitations are within the protections of the First Amendment.* However, we cannot endorse the practice in all situations as protected speech because it is permissible in some. The difference must be, we submit, in the web of circumstance, either under concepts of public forums or limited public forums, private or publicly-owned property, purpose and validity of the state’s interest and the rights of persons solicited, and the type of the audience. Such protected speech, we submit, is not an absolute principle. Even Jefferson’s famous words: “We hold these truths to be self-evident,— that all men are created equal * * * ”, cannot withstand many facts of life.
Albany, we submit, does not resolve many of these issues. The issue whether the waiting rooms are or are not public or limited forums was not decided, the issue of a captive audience was not decided, whether the group of waiting welfare recipients was a relative audience does not really come to grips with whether or not they are a captive audience. We respectfully submit that the welfare recipients’ waiting rooms in New York City’s 41 welfare centers are not public or limited public forums but are, indeed, but holding stations for the most pitiful captive audiences in our country, who, of course, can say “No” and walk away empty-handed. They wait five hours for this privilege?
I submit and conclude that we are bound in this case by United States Postal Service v. Council of Greenburgh Civic Associations, et al., 453 U.S. 114, 131 fn.7, 101 S.Ct. 2676, 2686 fn.7, 69 L.Ed.2d 517 (1981), wherein the Court answers Justice Marshall’s disagreement “with the Court’s assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is content-neutral * * * and reasonable * * *.” To which the Court answered:
“What we hold is the principle reiterated by cases such as Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), that property owned or controlled by the government which is not a public forum may be subject to a prohibition of speech, leafleting, picketing, or other forms of *245communication without running afoul of the First Amendment. Admittedly, the government must act reasonably in imposing such restrictions. Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119, 130-31, 97 S.Ct. 2532, 2540, 53 L.Ed.2d 629 (1977), and the prohibition must be content-neutral.”
The Supreme Court’s footnote 6, also in United States Postal Service, would seem to batten down our submission, namely:
“Even Justice Marshall’s dissent recognizes that the government may defend the regulation here on a ground other than simply a ‘time, place and manner basis.’ For example, he says in his dissent, p. 2688, that: ‘The question, then, is whether the statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute.’ We think § 1725 satisfies even the test articulated by Justice Marshall.” (p. 2686)
The judgment of the District Court should be affirmed in its entirety.
In Hynes v. Mayor of Oradell, 425 U.S. 610, 619, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976), the Court cited with approval Professor Chaffee’s low opinion of house-to-house canvassing.