United States Postal Service v. Council of Greenburgh Civic Associations

Justice Brennan,

concurring in the judgment.

I concur in the judgment, but not in the Court’s opinion. I believe the Court errs in not determining whether § 1725 is a reasonable time, place, and manner restriction on appellees’ exercise of their First Amendment rights, as urged by the Government, and in resting its judgment instead on the conclusion that a letterbox is not a public forum. In my view, this conclusion rests on an improper application of the Court’s precedents and ignores the historic role of the mails as a national medium of communication.

I

Section 1725 provides:

“Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300.” 18 U. S. C. § 1725.

Unquestionably, § 1725 burdens in some measure the First Amendment rights of appellees who seek to “communicate ideas, positions on local issues, and civic information to their constituents,” through delivery of circulars door-to-door. 490 F. Supp. 157, 162 (1980). See Martin v. City of Struthers, 319 U. S. 141, 146-147 (1943). The statute requires appel-lees either to pay postage to obtain access to the postal system, which they assert they are unable to do, or to deposit *135their materials in places other than the letterbox, which they contend is less effective than deposit in the letterbox.

Despite the burden on appellees’ rights, I conclude that the statute is constitutional because it is a reasonable time, place, and manner regulation. See Schad v. Mount Ephraim, 452 U. S. 61, 74-77 (1981); Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 535-536 (1980); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93 (1977); Groyned v. City of Rockford, 408 U. S. 104, 115-116 (1972). First, § 1725 is content-neutral because it is not directed at the content of the message appellees seek to convey, but applies equally to all mailable matter. See Consolidated Edison Co. v. Public Service Comm’n, supra, at 536; Erznoznik v. City of Jacksonville, 422 U. S. 205, 209-211 (1975); Police Department of Chicago v. Mosley, 408 U. S. 92, 95 (1972).

Second, the burden on expression advances a significant governmental interest — preventing loss of mail revenues. The District Court’s finding that the “failure to enforce the statute as to [appellees] would [not] result in a substantial loss of revenue” may be true, 490 F. Supp. 157, 163 (emphasis added), but that conclusion overlooks the obvious cumulative effect that the District Court’s ruling would have if applied across the country. Surely, the Government is correct when it argues that the Postal Service “is not required to make a case-by-case showing of a compelling need for the incremental revenue to be realized from charging postage to each organization or individual who desires to use the postal system to engage in expression protected by the First Amendment.” Reply Brief for Appellant 8.

Third, there are “ample alternative channels for communication.” Consolidated Edison Co. v. Public Service Comm’n, 447 U. S., at 535. Appellees may, for example, place their circulars under doors or attach them to doorknobs. Simply because recipients may find 82% of materials left in the letterbox, but only 70-75% of materials otherwise left at the residence, is not a sufficient reason to conclude that alterna*136tive means of delivery are not “ample.” Ibid.; see ante, at 120, and n. 2.

II

The Court declines to analyze § 1725 as a time, place, and manner restriction. Instead, it concludes that a letterbox is not a public forum. Ante, at 128. Thus the Court states that

“it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U. S. 828 (1976), the jail or prison in Adderley v. Florida, 385 U. S. 39 (1966), and Jones v. North Carolina Prisoners’ Union, 433 U. S. 119 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974).” Ante, at 129.

I believe that the Court’s conclusion ignores the proper method of analysis in determining whether property owned or directly controlled by the Government is a public forum. Moreover, even if the Court were correct that a letterbox is not a public forum, the First Amendment would still require the Court to determine whether the burden on appellees’ exercise of their First Amendment rights is supportable as a reasonable time, place, and manner restriction.

A

For public forum analysis, “[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Grayned v. City of Rockford, supra, at 116. We have often quoted Justice Holmes’ observation that the “ 'United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues ....’” Blount v. Rizzi, 400 U. S. 410, 416 (1971), and Lamont v. Postmaster General, 381 U. S. 301, 305 (1965), quoting United States ex *137rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 437 (1921) (Holmes, J., dissenting).1 Our cases have recognized generally that public properties are appropriate fora for exercise of First Amendment rights. See, e. g., Tinker v. Des Moines School District, 393 U. S. 503, 512 (1969); Brown v. Louisiana, 383 U. S. 131, 139-140, 142 (1966) (plurality opinion); Cox v. Louisiana, 379 U. S. 536, 543 (1965); Edwards v. South Carolina, 372 U. S. 229 (1963).2 While First Amendment rights exercised on public property may be subject to reasonable time, place, and manner restrictions, that is very different from saying that government-controlled property, such as a letterbox, does not constitute a public forum, only 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. See Greer v. Spock, 424 U. S. 828 (1976); Jones v. North Carolina Prisoners’ Union, 433 U. S. 119 (1977); Adderley v. Florida, 385 U. S. 39 (1966). Thus, in answering “[t]he crucial question . . . whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time,” Grayned v. City of Rockford, supra, at 116, I believe that the mere deposit of mailable matter without postage is not “basically incompatible” with the “normal activity” for which a letterbox is used, i. e., deposit of mailable matter with proper postage or mail delivery by the Postal Service. On the contrary, the mails and the letterbox are specifically used for the communication of information and ideas, and thus surely constitute a public *138forum appropriate for the exercise of First Amendment rights subject to reasonable time, place, and manner restrictions such as those embodied in § 1725 or in the requirement that postage be affixed to mailable matter to obtain access to the postal system.

The history of the mails as a vital national medium of expression confirms this conclusion, Just as “streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U. S. 496, 515 (1939).3 so too the mails from the early days of the Republic have played a crucial role in communication. The Court itself acknowledges the importance of the mails as a forum for communication:

“Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. . . . In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army.” Ante, at 121 (emphasis added).

The Court further points out that “[t]he Post Office played a vital . . . role in the development of our new Nation,” ibid, (emphasis added), and currently processes “106.3 billion pieces of mail each year,” ante, at 122. The variety of communication transported by the Postal Service ranges from the sublime to the ridiculous, and includes newspapers, magazines, books, films, and almost any type and form of expression imaginable. See Kappel Commission, Toward Postal Excel*139lence, Report of the President’s Commission on Postal Organization 47-48 (Comm. Print 1968). Given “the historic dependence of the Nation on the Postal Service,” ante, at 123, it is extraordinary that the Court reaches the conclusion that the letterbox, a critical link in the mail system, is not a public forum.

Not only does the Court misapprehend the historic role that the mails have played in national communication, but it relies on inapposite cases to reach its result. Greer v. Spock,4 Adderley v. Florida,5 and Jones v. North Carolina Prisoners’ Union,6 all rested on the inherent incompatibility between the *140rights sought to be exercised and the physical location in which the exercise was to occur. Lehman v. City of Shaker Heights7 rested in large measure on the captive audience doctrine, 418 U. S., at 304, and in part on the transportation purpose of the city bus system, id., at 303. These cases, therefore, provide no support for the Court's conclusion that a letterbox is not a public forum.

B

Having determined that a letterbox is not a public forum, the Court inexplicably terminates its analysis. Surely, however, the mere fact that property is not a public forum does not free government to impose unwarranted restrictions on First Amendment rights. The Court itself acknowledges that the postal power “may not ... be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution.” Ante, at 126. Even where property does not constitute a public forum, government regulation that is content-neutral must still be reasonable as to time, place, and manner. See, e. g., Young v. American Mini Theatres, Inc., 427 U. S. 50, 63, n. 18 (1976). Cf. Linmark Associates, Inc. v. Willingboro, 431 U. S., at 92-93; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976). The *141restriction in § 1725 could have such an effect on First Amendment rights — and does for Justice Marshall — that it should be struck down. The Court, therefore, cannot avoid analyzing § 1725 as a time, place, and manner restriction.8

h-H hH I — i

I would conclude, contrary to the Court, that a letterbox is a public forum, but, nevertheless, concur in the judgment because I conclude that 18 U. S. C. § 1725 is a reasonable time, place, and manner restriction on appellees’ exercise of their First Amendment rights.

It would make no sense to conclude that the “mails” are a vital medium of expression, but that letterboxes are not. Inasmuch as the Postal Service, by regulation, requires postal customers to provide appropriate mail receptacles conforming to specified dimensions, the letterbox is an indispensable component of the mail system.

Of course, the postal power must be exercised in a manner consistent with the First Amendment. See Blount v. Rizzi, 400 U. S. 410, 416 (1971); Lamont v. Postmaster General, 381 U. S. 301, 305-306 (1965).

See generally Gibbons, Hague v. CIO: A Retrospective, 52 N. Y. U. L. Rev. 731 (1977).

In Greer v. Spock, 424 U. S. 828 (1976), pursuant to base regulations political candidates were denied permission to distribute campaign literature and to hold a political meeting on a military base. In upholding the challenged regulations, the Court specifically relied on the unique function of military installations “to train soldiers, not. to provide a public forum,” id., at 838, and the historic power of a commanding officer “ ‘to exclude civilians from the area of his command,' ” Ibid., quoting Cafeteria Workers v. McElroy, 367 U. S. 886, 893 (1961).

In Adderley v. Florida, 385 U. S. 39 (1966), the Court upheld trespass convictions of students who were demonstrating on jailhouse property, relying principally on the purpose of jails, “built for security purposes,” id., at 41, which unlike “state capitol grounds,” are not open to the public. Ibid.

In Jones v. North Carolina Prisoners’ Union, 433 U. S. 119 (1977), prisoners challenged the constitutionality of prison regulations prohibiting prisoners from soliciting other inmates to join a prisoners’ labor union and barring union meetings and bulk mailings concerning the union from outside sources. The Court upheld the regulations in the face of a First Amendment challenge on the basis that the First Amendment activity was incompatible with “reasonable considerations of penal management.” Id., at 132. The Court also rejected the prisoners’ equal protection challenge. The Court analogized a prison to a military base, stating that a “prison may be no more easily converted into a public forum than a military base,” id., at 134, and concluded that prison officials could treat the union differently from other organizations such as the Jaycees and Alcoholics Anonymous for meetings and for bulk mailing purposes, because the “chartered purpose of the Union . . . was illegal under North Carolina law.” Id., at 135-136.

In Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), the Court upheld a ban on political advertising in buses, but only four Justices concluded that advertising space in a city transit system is not a First Amendment forum. They reached that result because the transit system sought, by its limitation on political speech, “to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.” Id., at 304. Justice Douglas concurred in the judgment on the narrow ground that petitioner had no constitutional right to force his message upon a captive audience. Joined by Justices Stewart, Marshall, and Powell, I dissented on the ground that “the city created a forum for the dissemination of information and expression of ideas when it accepted and displayed commercial and public service advertisements on its rapid transit vehicles.” Id., at 310.

Even if the letterbox were characterized as purely private property that is being regulated by the Government, rather than property which has become incorporated into the “Postal Service’s nationwide system for the receipt and delivery of mail,” ante, at 123, § 1725 would still be subject to time, place, and manner analysis. See, e. g., Young v. American Mini Theatres, Inc., 427 U. S. 50, 63, n. 18 (1976).