United States v. Marsha B. Kokinda and Kevin E. Pearl, Christian Advocates Serving Evangelism Project for Public Spaces, Inc., Amicus Curiae

WIDENER, Circuit Judge,

dissenting:

The majority holds an internal postal walkway, some seventy-seven feet from a public sidewalk, to be a traditional public forum and in so doing strikes down 89 C.F.R. § 282.1(h) as unconstitutional. Our decision is contrary to every circuit which has decided the question, the Third, Ninth, and Eleventh Circuits. And the Seventh Circuit has reached the same result.1 Because I believe that the walkway at issue is a nonpublic forum and that the challenged regulation is reasonable and viewpoint-neutral, I respectfully dissent.

The internal postal walkway at issue is at all points some seventy-seven feet from a public sidewalk and street. It is separated from the public way by a parking lot owned by the post office. The walkway is wholly on post office property and is used solely for pedestrian traffic between the post office parking lot and the post office. As in the Third Circuit, “[i]t is clear that the walkways at issue here bordering freestanding buildings a good distance removed from the street could not be confused with municipal sidewalks.” United States v. Bjerke, 796 F.2d 643, 649 (3rd Cir.1986).

The postal regulation struck down by the majority forbids solicitation on postal property.2 It is true that certain non-commercial solicitation is protected speech as illustrated by Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), which held solicitation for the CFC, a federal employee charity drive, to be protected speech. That however merely begins the inquiry since “[ejven protected speech is not equally permissible in all places at all times. 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 might be caused by the speaker’s activities.” 473 U.S. at 799-800, 105 S.Ct. at 3447. The First Amendment does not guarantee access to government property simply because the property is owned or controlled by the government. Cornelius at 803, 105 S.Ct. at 3449. The government has the power to preserve the property under its control for the use to which it is lawfully dedicated. For the purposes of determining when the government’s interest in limiting the use of its property for its intended purpose outweighs other interests in its use, the Supreme Court has adopted a “forum analysis.” The extent to which the government may control access depends upon the nature of the forum. Cornelius at 800, 105 S.Ct. at 3447; see also Perry Education Assn., v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

In this circuit, we have previously applied the forum analysis required by Perry and cases following. In Chapman v. Thomas, 743 F.2d 1056 (4th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1866, 85 L.Ed.2d 160 (1985), we upheld North Carolina State University’s ban of most, but not all, on-campus door to door solicitation. *707In so holding, we construed Perry and the application of the Perry standards against which to measure restraints placed upon First Amendment activity:

The first category includes traditional public forums such as streets and parks “which by long tradition or government fiat have been devoted to assembly and debate” (citation omitted). The [government’s] power to restrict first amendment activities in public forums is severely limited ...
Public property not in the first category that is, however, open to the public by the ... [government] as a forum for expressive activity comprises the second category. Although the [government] ... is not constitutionally required to open such facilities to the public, if it chooses to do so, the state then is bound by the same standards as apply in a traditional public forum. [Citations omitted] ...
The third category consists of public property which is neither a traditional nor designated public forum. These nonpublic forums are governed by different standards [citation omitted] ... In Perry, the Court held that
Implicit in the concept of 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 purpose of the property ... When government property is not dedicated to open communication the government may-without further justification-retrict use to those who participate in the forum’s official business. (Citations omitted).

Chapman, supra, at 1058.

I cannot accept the premise advanced by the majority as the principal reliance for its decision that all sidewalks, wherever located, are fungible and are public forums. While it is true that in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 786 (1983), the Court held that a sidewalk forming a part of the perimeter of certain of the Supreme Court grounds was a public forum, the Court repeatedly stressed the fact that the perimeter sidewalks . at issue were “indistinguishable from any other sidewalks in Washington, D.C.” 461 U.S. at 179, 103 S.Ct. at 1708.3 Identifying a portion of government property as a sidewalk does not end the inquiry. Bather, the relevant authorities require us to determine whether these sidewalks are public, by tradition or by designation, or nonpublic. The walkway at issue in this case does not define the government property or form the perimeters thereof, as did the sidewalks in Grace. The walkway in this case is distinguishable from the municipal sidewalk which forms the street front boundary of this postal property; indeed, it lies some 77 feet from the public sidewalk *708which runs along the street on which the post office is located. Had the government attempted to restrict First Amendment activity on that public sidewalk, we would have a different case, but that question is not before us. The district court found that the internal walkway in question serves only one function, i.e., for access to the post office in furtherance of postal business. Its dedication to that use is not challenged. The walkway in question here is entirely within postal property, serves the sole function of furthering official postal business, and is separated by a parking lot from the municipal sidewalk which does abut the government property. The internal postal walkway is not a traditional public forum within the meaning of that phrase as used in Perry. So, the walkway is not within Perry’s first classification.

Similarly the government has not dedicated this walkway for First Amendment activity. The government did not create its walkway for purposes of providing a forum for expressive activity. Even had such activity occurred there, which is not this case, and even though it may be available for the limited communication of ideas, this walkway is not so automatically made into a public forum. See, e.g., Cornelius, 473 U.S. at 805, 105 S.Ct. at 3450; U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. at 130 n. 6, 101 S.Ct. at 2685 n. 6. The uncontroverted evidence establishes that the walkway was not made available for solicitation, and never has been so far as the record discloses. While defendants argue that the postal regulation does not prohibit the free distribution of literature, as we have noted, the “government does not create a public forum ... by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius, supra, 473 U.S. at 802,105 S.Ct. at 3449. Some “... selective access does not transform government property into a public forum.” Perry, 460 U.S. at 47, 103 S.Ct. at 956. Thus, the property does not fall within Perry’s second classification.

This analysis leaves the inner walkway in question as a nonpublic forum and thus within Perry’s third classification. The analysis next requires a determination of whether the restriction is reasonable and viewpoint-neutral. Cornelius, 473 U.S. at 806, 808, 105 S.Ct. at 3451, 3452. The ban on all solicitation is viewpoint neutral. The regulation is reasonable in light of the purpose the property is intended to serve. Permitting solicitation activities may reasonably be expected to interfere with access to the post office. While such solicitation as that at issue here is a form of protected speech, it is a more intrusive and complicated activity than would be the mere distribution of free literature. It causes greater disruption and confusion and is more time consuming. See United States v. Belsky, 799 F.2d 1485, 1489-90 (11th Cir.1986).

As noted by the Belsky court:

[sjuch activities could contribute to parking congestion, make access into the postal buildings difficult, and generally impede the use of the properties for their intended purpose, which is to provide postal services. If solicitation were permitted on postal grounds, it is unlikely that appellants’ group would be the only organization to take advantage of it; the result could be considerable disruption of postal activities. 799 F.2d at 1489.

The regulation is reasonable, viewpoint-neutral, and designed to further the efficient rendering of postal services. It restricts access to a nonpublic forum, and so does not offend the First Amendment. Cornelius, 473 U.S. at 811, 105 S.Ct. at 3453, states well my conclusion: “[t]he First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.”

Finally, the fact that the regulation applies to all post offices, without regulatory language providing for the nuances of each individual post office building or facility, does not render the regulation overbroad in the sense that it does not account for variations in individual post offices. In the words of the Supreme Court:

*709If Congress and the Postal Service are to operate as efficiently as possible a system for the delivery of mail which serves a Nation extending from the Atlantic Ocean to the Pacific Ocean, from the Canadian boundary on the north to the Mexican boundary on the south, it must obviously adopt regulations of general character having uniform applicability throughout the more than three million square miles which the United States embraces. In so doing, the Postal Service’s authority to impose regulations cannot be made to depend on all of the variations of climate, population, density, and other factors that may vary significantly within a distance of less than 100 miles.

U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. at 133, 101 S.Ct. at 2687.

Neither is the regulation overbroad because it prevents all solicitation. Indeed, that very fact insures viewpoint neutrality.

In sum, I would affirm.

. Confronted with the exact issue, three other circuits have held that similar internal postal walkways are not traditional public forums and that the challenged postal regulations were reasonable and viewpoint neutral. United States v. Bjerke, 796 F.2d 643 (3rd Cir.1986), Monterey Cty. Dem. Cent. Comm. v. U.S. Postal Service, 812 F.2d 1194 (9th Cir.1987), United States v. Belsky, 799 F.2d 1485 (11th Cir.1986).

The Seventh Circuit held the postal regulation struck down by the majority here was a reasonable manner restriction and therefore constitutional even if the walkway was a public forum, an issue the court declined to reach. National Anti-Drug Coalition Inc. v. Bolger, 737 F.2d 717 (7th Cir.1984).

. The regulation, 39 C.F.R. § 232.1(h), provides in relevant part:

(1) Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, commercial soliciting and vending, and displaying or distributing commercial advertising on postal premises are prohibited.

. The Supreme Court expressly declined to rule on the First Amendment implications of restricting expressive activity within the Court grounds, choosing instead to limit its holding to perimeter sidewalks. The Court emphasized that these sidewalks were "public” because they were indistinguishable from traditional "public” sidewalks: "[t]he sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated differently.” Grace, supra, at 179, 103 S.Ct. at 1708; “[t]here is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” 461 U.S. at 180, 103 S.Ct. at 1708; "[t]hose sidewalks are used by the public like other public sidewalks. There is nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds or are in any way different from other public sidewalks in the city." 461 U.S. at 183, 103 S.Ct. at 1710.

In Grace, the Court did not establish that all sidewalks, except those in an enclosed and secured enclave, constitute traditional public forum property. The Court has rejected an attempt to dismiss the holdings of Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (sidewalks within a military base are not public forums); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) and Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (jail and prison property are not public forums), as an exception to the analysis for "unusual forums” or enclosed and secure enclaves. Perry, 460 U.S. at 49, n. 9, 103 S.Ct. at 957, n. 9.